REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENTCase no: CC 32/2001

In the matter between:

THE STATEand

CALVIN LISELI MALUMO & 65 OTHERS ACCUSED

Neutral citation: S v Malumo (CC 32-2001) [2015] NAHCMD 213 (7-14

September 2015)

Coram: HOFF, J

Heard: 24 February 2004 until 05 December 2014

Delivered: 7-11, 14 September 2015

Table of Contents of the Jugdment

JUDGMENT.........................................................................................................................................5

Flynote:.................................................................................................................................................5

Introduction..........................................................................................................................................9

The charges against the accused persons......................................................................................9

Address by the State........................................................................................................................15

Common law principles of High Treason.......................................................................................17

Common law principles on Sedition...............................................................................................23

Common law principles on Public Violence...................................................................................24

2

Burden of proof on the State...........................................................................................................27

Facts not in dispute..........................................................................................................................29

Acccused persons who testified: Clients of Mr Kauta..................................................................31

Bollen Mwilima Mwilima (accused no. 65).................................................................................31

Application for special entry in terms of s. 317.....................................................................39

Alfred Lupalezi Siyata (accused no. 80)....................................................................................61

Leonard Mutonga Ntelamo (accused no. 84)............................................................................68

Charles Nyambe Mainga (accused no. 87)...............................................................................72

Kambende Victor Makando (accused no. 90)...........................................................................82

Norman Chrisopher John Justus (accused no. 93)..................................................................88

Muketwa Eustace Sizuka (accused no. 95)..............................................................................96

Mateus Muyandulwa Sasele (accused no. 100).......................................................................98

Gerson Luka Luka (accused no. 101)......................................................................................102

Clients of Mr McNally.....................................................................................................................106

Robert Lifasi Chelezo (accused no. 97)...................................................................................106

Berhard Maungolo Jojo (Accused no. 98)...............................................................................112

Victor Masiye Matengu (Accused no. 60)................................................................................120

Richard Limbo Mukawa (accused no. 91)...............................................................................128

Alfred Tawana Matengu (Accused no. 79)..............................................................................132

Eugene Milunga Ngalaule (accused no. 64)...........................................................................139

Mwilima Gabriel Mwilima (accused no. 61).............................................................................143

Jimmy James Matemwa Liswaniso (accused no. 58)............................................................151

Matheus Munali Pangula (accused no. 59).............................................................................159

George Kasanga (accused no. 77)...........................................................................................169

Richard Simaata Mundia (accused no. 104)...........................................................................172

Mashazi Allen Samenja (accused no. 67)...............................................................................180

Clients of Mr Neves........................................................................................................................186

Geoffrey Kupuzo Mwilima (accused no. 68)...........................................................................186

Adour Mutalife Chika (accused no. 2)......................................................................................203

Kingsley Mwiya Musheba (accused no.9)...............................................................................211

Clients of Mr Kachaka....................................................................................................................218

Richwell Mbala Manyemo (accused no. 115).........................................................................218

Rodwell Sihela Mwanabwe (accused no. 30).........................................................................228

Kester Silemu Kambunga (accused no. 102)..........................................................................237

Fabian Thomas Simiyasa (accused no. 96)............................................................................248

Albert Sakena Mangilazi (accused no. 55)..............................................................................265

3

Clients of Mr Nyoni.........................................................................................................................275

Osbert Mwenyi Likanyi (accused no.57)..................................................................................275

Gabriel Nyambe Ntelamo (accused no.88).............................................................................284

Admissibility of the deployment list...............................................................................................288

Accused persons who did not testify: Principles on failure to give evidence..........................290

Clients of Mr Nyoni.........................................................................................................................292

Oscar Kashalula Muyuka Puteho (accused no. 49)...............................................................292

Martin Sabo Chainda (accused no.103)..................................................................................298

Ignatius Nawa Twabushalila (accused no.44)........................................................................301

Patrick Itwa Likando (accused no.89)......................................................................................305

Clients of Mr. Neves.......................................................................................................................308

Bernard Mucheka (accused no. 75).........................................................................................308

Tiiso Ernest Manyando (accused no.37).................................................................................310

Clients of Mr Dube..........................................................................................................................312

John Samati Yalubbi (accused no.53).....................................................................................312

Richard Libano Misuha (accused no.48).................................................................................313

Moses Chicho Kayoka (accused no.47)..................................................................................317

Clients of Mr Samukange..............................................................................................................321

Bennet Kacenze Mutuso (accused no.69)...............................................................................321

Oscar Nyambe Puteho (accused no.72)..................................................................................324

Charles Mafenyeho Mushakwa (accused no.73)...................................................................328

Clients of Mr Muluti.........................................................................................................................331

Rafael Lyazwila Lifumbela (accused no.6)..............................................................................331

Francis Buitiko Pangala (accused no. 17)...............................................................................334

Sylvester Lusiku Ngalaule (accused no. 8).............................................................................336

Sikundeka John Samboma (accused no. 54).........................................................................337

Clients of Mr Kavendji....................................................................................................................346

George Masialeti Liseho (accused no. 15)..............................................................................346

Austen Lemuha Ziezo (accused no. 121)................................................................................351

Aggrey Kayaba Makendano (accused no. 11)........................................................................354

Clients of Mrs Aggenbach..............................................................................................................359

Mandate and jurisdiction of the High Court over the Caprivi Zipfel..........................................359

Thaddeus Siyoka Ndala (accused no. 70)...............................................................................365

Martin Siano Tubaundule (accused no. 71)............................................................................367

Andreas Puo Mulupa (accused no. 26)....................................................................................370

Joseph Kamwi Kamwi (accused no. 3)....................................................................................371

4

Herbert Mboozi Mutahane (accused no. 5).............................................................................373

Chris Puisano Ntaba (accused no. 7)......................................................................................374

Roster Mushe Lukato (accused no. 18)...................................................................................376

Davis Chioma Mazyu (accused no. 16)...................................................................................378

Postrick Mowa Mwinga (accused no. 23)................................................................................378

Ndala Saviour Tutalife (accused no. 24)..................................................................................380

Brighton Simisho Lielezo (accused no. 31).............................................................................383

John Panse Lubilo (accused no. 50)........................................................................................383

Rex Lumponjani Kapanga (accused no. 63)...........................................................................387

Brandan Luyanda Luyanda (accused no. 120).......................................................................388

Frans Muhupulo (accused no. 122)..........................................................................................389

Witnesses warned in terms of s 204 of Act 51 of 1977..............................................................389

The Charges of High Treason, Murder and Attempted murder................................................390

Order: Convictions..........................................................................................................................392

5

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENTCase no: CC 32/2001

In the matter between:

THE STATEand

CALVIN LISELI MALUMO & 65 OTHERS ACCUSED

Neutral citation: State v Malumo (CC 32/2001) [2015] NAHCMD 213 (7-14

September 2015)

Coram: HOFF, J

Heard: 24 February 2004 until 05 December 2014

Delivered: 7-11, 14 September 2015

Flynote: Criminal law – 278 charges against the accused persons – Main

charges, High Treason, Sedition and Public Violence, murder and attempted murder

– Requirements discussed – Test – Whether the State has proved beyond

reasonable doubt that there were overt acts done with the hostile intent – Principles

on the defence of Alibi and mistaken identity raised by the defence discussed.

Jurisdiction – Jurisdiction of the High Court over the Caprivi Zipfel discussed and

clarified – Principle of duplication of convictions applied – Evaluation of evidence

proving that the State has discharged the onus in respect of 30 accused person and

6

has failed to discharge such onus in respect of 35 accused persons alleged to have

been involved in the 2nd August 1999 attack on the Caprivi Region with the aim to

overthrow the authority exercised by the Government of Namibia in the Caprivi

Region.

ORDER

[1] The following accused persons are hereby convicted of:

Count 1 – High Treason;

Counts: 5, 6, 7, 8, 9, 10, 11, 12 and 13 of murder; and

Counts: 32, 34 to 41, 43 to 50, 52,56,58,60,62,63,64,66,68,70,76,78,80,84,87 to

90,92,97,99,102,107 to 110, 112, 116, 118, 119, 125, 127, 129, 130, 133, 135, 136,

138,141,142,144,146,151,153,155,156,159,160,164,165,169,171 to 173, 178, 185,

187,193,195,196,199,202,209,213,228,230,231,234,239,249,261,276 and 277 of

attempted murder.

1. Bollen Mwilima Mwilima (Accused no 65)

2. Alfred Lupalezi Siyata (Accused no 80)

3. Charles Nyambe Mainga (Accused no 87)

4. Mathews Muyandulwa Sasele (Accused no 100)

5. Berhard Maungolo Jojo (accused no 98)

6. Victor Masiye Matengu (Accused no 60)

7. Alfred Tawana Matengu( Accused no 79)

8. Mathews Munali Pangula (Accused no 59)

9. Richard Simataa Mundia (Accused no 104)

10.Georffrey Kupuzo Mwilima (Accused no 68)

11.Adour Mutalife Chika (Accused no 2)

12.Kingsley Mwiya Musheba (Accused no 9)

13.Rodwell Sihela Mwanabwe (Accused no 30)

14.Kester Silemu Kambunga (Accused no 102)

15.Fabian Thomas Simiyasa (Accused no 96)

16.Albert Sakena Mangilazi (Accused no 55)

17. Osbert Mwenyi Likanyi (Accused no 57)

7

18.Richard Libano Misuha ( Accused no 48)

19.Moses Chicho Kayoka (Accused no 47)

20.Bennet Kacenze Mutuso (Accused no 69)

21.Charles Mafenyeho Mushakwa (Accused no 73)

22.Raphael Lyazwila Lifumbela (Accused no 6)

23.Sikunda John Samboma (Accused no 54)

24.Aggrey Kayaba Makendano (Accused no 11)

25.Theddeus Siyoka Ndala (Accused no 70)

26.Martin Siano Tabaundule (Accused no 71)

27.Chris Puisano Ntaba (Accused no 7)

28.Postrick Mowa Mwinga (Accused no 23)

29.Ndala Saviour Tatalife (Accused no 24)

30.John Panse Lubilo (Accused no 50)

[2] The following accused persons are found not guilty of the charges preferred

against them:

1. Leonard Mutonga Ntelamo (Accused no 84)

2. Norman Christopher John Justus (Accused no 93)

3. Muketwa Eustace Sizuka (Accused no 95)

4. Gerson Luka Luka (Accused no 101)

5. Robert Lifasi Chelezo (Accused no 97)

6. Richard Limbo Mukawa (Accused no 91)

7. Eugene Milunga Ngalaule (Accused no 64)

8. Mwilima Gabriel Mwilima (Accused no 61)

9. Jimmy James Mtemwa Liswaniso (Accused no 58)

10.George Kasanga (Accused no 77) - But guilty on count 272: C/S 2(c) read

with section 81(1)(a) of the Departure from the Union Regulation Amendment

Act, Act 34 of 1955, as amended by section 2 of the Departure from Namibian

Regulation Act, Act No. 4 of 1993 – ILLEGAL EXIT FROM NAMIBIA.

11.Mashazi Allen Sameja (Accused no 67)

12.Richwell Mbala Manyemo (Accused no 115)

13.Gabriel Nyambe Ntelamo (Accused no 88)

8

14.Oscar Kashalula Muyuka Puteho (Accused no 49) – But guilty on count 273:

C/S 2(c) read with section 81(1)(a) of the Departure from the Union

Regulation Amendment Act, Act 34 of 1955, as amended by section 2 of the

Departure from Namibian Regulation Act, Act No. 4 of 1993 – ILLEGAL EXIT FROM NAMIBIA.

15.Martin Sabo Chainda ( Accused no 103)

16. Ignatius Nawa Twabushalila (Accused no 44)

17.Patrick Itwa Likando ( Accused no 89)

18.Bernhard Mucheka (Accused no 75)

19.Tiiso Ernst Manyando ( Accused no 37)

20.John Samati Yalubbi (Accused no 53)

21.Oscar Nyambe Puteho (Accused no 72)

22.Kambende Victor Makando (Accused no 90)

23.Sylvester Lusiku Ngalaule (Accused no 8 )

24.George Masialeti Liseho ( Accused no 15) – But guilty on count 274: C/S 6(1)

of the Immigration Control Act 7 of 1993 – ILLEGAL ENTRY INTO NAMIBIA25.Austen Lemuha Ziezo (Accused no 121)

26.Andreas Puo Mulupa (Accused no 26)

27.Joseph Kamwi Kamwi (Accused no 3)

28.Herbert Mboozi Mutahane (Accused no 5)

29.Roster Mushe Lukato (Accused no 18)

30.Davis Chioma Mazyu (Accused no 16)

31.Rex Lumponjani Kapanga (Accused no 63)

32.Brandon Luyanda Luyanda (Accused no 120)

33.Frans Muhupolo ( Accused no 122)

34.Brighton Simisho Lielezo (Accused no 31)

35.Francis Buitiko Pangala ( Accused no 17)

JUDGMENT

HOFF, J:

9

Introduction

[1] On 2 August 1999, during the early hours of the morning, the town Katima

Mulilo was attacked by a group of individuals, some of whom were armed with

weapons of war. The following institutions were attacked namely, the Katima Mulilo

police station, Mpacha military base, the offices of the Namibian Broadcasting

Corporation (NBC), Katonyana police base, Wanela border post and the Bank

Windhoek branch. During the attack, a number of persons lost their lives, some were

seriously injured and property belonging to the State had been damaged. In the

aftermath of this attack, a number of individuals had been arrested and charged.

The charges against the accused persons

[2] On 15 March 2004, 278 charges were put to the accused persons who, at that

stage, were all legally represented.1The main count of high treason reads as follows:

‘That the accused are guilty of the crime of HIGH TREASON.

Whereas the Republic of Namibia at all relevant times was and still is a Sovereign State;

And Whereas the accused at all relevant times were citizens of the Republic of Namibia

and/or were domiciled in the Republic of Namibia and/or were resident in the Republic of

Namibia and thus owed allegiance to the Republic of Namibia (hereinafter referred to as the

State);

And Whereas the accused between JANUARY 1992 AND 06 December 2002 conspired

together with each other and with other persons at different places in the CAPRIVI REGION and on dates, the exact particulars of which are unknown to the State, to overthrow or

undermine the authority of the State, take over the authority of the State, coercing the State

into action or inaction, violating or threatening the existence, independence or security of the

Government and/or changing the Constitutional structure in the Caprivi Region;

And Whereas the Central committee of the United Democratic Party (UDP) of the Caprivi

Zipfel resolved to create the Caprivi Liberation Army as the fighting wing of the Party.

And Whereas the accused jointly or severally and with other persons grouped themselves

into an organization that was named the CAPRIVI LIBERATION MOVEMENT/ARMY,

1 See further paras 9,10 of the charge sheet.

10

abbreviated CLA/CLM, in pursuance of the abovementioned conspiracy; which organization

had as its objects;

1. To organize an army to liberate the Caprivi Zipfel from the present foreign

dominated regime of Namibia.

2. To create the nucleus of an independent country’s army.

3. To organized and purchase (where possible) arms and equipments that are to be

used for the liberation struggle.

4. To recruit all able bodied Caprivians into the army without any discrimination on

the basis of sex, religion and tribe.

5. To be the instrument for liberty, freedom and democracy.

6. To help in upholding the principles of liberty and respect of basic human rights.

7. To be a better organized, trained and disciplined military force.

8. To protect the freedom and territorial integrity of the Caprivi Zipfel.

9. To help the police in maintaining law and order of the country.

10. To serve the people, country and government of the Caprivi Zipfel.

And Whereas the accused and/or other persons after they became aware of the aims and

objectives of the conspiracy and/or purpose, aims and objectives of the CLM/CLA, joined in

and associated themselves with the conspiracy and/or the CLM/CLA and/or remained a

member thereof and/or furthered and supported the aims and objectives thereof;

And Whereas, the accused in pursuance of the conspiracy committed one or other of the

overt acts as stated in paragraph 1 to 22 hereunder;

Now therefore, the accused committed the crime of HIGH TREASON;

IN THAT about or between January 1992 and December 2002 and at various places in the

Caprivi Region the accused did unlawfully and with hostile intent against the State and to

undermine the authority of the State, take over the authority of the State, coercing the State

11

by violence into action or inaction, violating or threatening the existence, independence or

security of the Government;

1. Held various meetings where the coup d’etat was discussed, planned and agreed

upon;

2. Plan a violent take-over of the authority of the State in the Caprivi Region, and/or;

3. Gather on or about 2 – 3 October 1998 at Makanga forest to arm and train

themselves for the coup d’etat; and/or;

4. Gather on or about 7 to 14 October 1998 at Sachona to arm and train themselves

for the coup d’etat; and/or;

5. Gather on or about 15 to 27 October 1998 at Linyati and Lyiubu-Lyiubu forest to

arm and train themselves for the coup d’etat; and/or;

6. Escape, or assisted other persons to escape from several refugee camps in

Botswana to attend camps and training in Zambia, Angola and in Namibia to arm and

train themselves for the coup d’etat; and/or transported or assisted to transport other

for such purpose and/or;

7. Gather and conspired on 30 July to 2 August 1999 at Makanga rebel base with other

persons to carry out a coup d’etat in the Caprivi Region; and/or;

8. Gather and conspired with other persons at Cameroon rebel base and/or on other

places in the Caprivi Region, Zambia, Botswana and Angola to arm and train

themselves for the takeover of the authority of the State in the Caprivi Region; and/or

9. Fail to, after the said proposed coup d’etat or conspiracy came to his/her/their

knowledge, to report it to the Authorities/Namibian Police without further partaking

therein; and/or

10. Attempt to recruit or recruiting other persons for the coup d’etat; and/or

11. Conspire to steal fire-arms from Mpacha military base, Katounyana Special Field

Force base and Katima Mulilo Police Station and/or other places and/or take over

Mpacha military base, Katounyana Special Field Force base and Katima Mulilo

Police Station; and/or;

12

12. Conspire to attack and/or occupy and on 2 August 1999 did attack Mpacha military

base, Katounyana Special Field Force base, Wanela Border Station, Namibian

Broadcasting Corporation, Katima Mulilo Police Station and the Central Business

Area of Katima Mulilo as well as the house of Sgt. Liswani Mabuku and/or;

13. Conspire to arrest and/or kill the officials of the State in Caprivi and/or;

14. Perform or neglect to perform any duty resulting in procuring the conspiracy or

intended result of the conspiracy or neglecting to report the conspiracy immediately

or effecting the arrest of the conspirators;

15. Instigated or recruited or attempted to assist or recruit other persons to flee and/or go

to Botswana and/or other places in the Caprivi Region, Zambia or Angola to join the

Caprivi Liberation Army and/or to receive military training, and/or to mobilize

themselves into a rebel army with a view to take over the authority of the State in the

Caprivi Region.

16. Donate money or collect money to assist in rebel activities with a view to take over

the authority of the State in the Caprivi Region and/or;

17. Procure firearms or instigate others to procure firearm with a view to take over the

authority of the State in the Caprivi Region and/or;

18. Transported or assisted to transport other persons to flee the Caprivi Region to

places where they can receive military training and/or to flee to refugee camps with

the intent to support and mobilize the Caprivi Liberation Army and/or;

19. Gather at a meeting on 1 August 1999 at Linyanti where in the pursuance of the

conspiracy it was decided to attack various places in the Caprivi Region; and/or

20. Gather at Kaliyangile and Masokotwane rebel bases or at other places in the Caprivi

Region after the attack of 2 August 1999 with the aim to regroup militarily and/or to

remobilize the Caprivi Liberation Army to take over the authority of the State in the

Caprivi Region and/or;

21. Transported or assisted to transport rebels on the 2 August 1999 with the aim to

attack various places in the Caprivi Region with the aim to take over the authority of

the State in the Caprivi Region; and/or;

22. Render assistance in the form of food, water, transport, shelter or accommodation to

the rebels with the aim to take over the authority of the State in the Caprivi Region,

13

Which acts were likely to achieve the secession of the Caprivi from Namibia by military

means.’

[3] The second count of sedition reads as follows:

‘COUNT 2

That the accused is/are guilty of the crime of SEDITION.

In that upon or about or between January 1998 and February 2003 and at or near the

districts of Katima Mulilo and /or Grootfontein the said accused did unlawfully and with

seditious intent, participate in a gathering of a number of people, which gathering had the

intention to unlawfully defy, and subvert, challenge, resist and/or assail the authority of the

government of the Republic of Namibia by:

1. Addressing, participating, discussing, planning, supporting and resolving, at

various meetings held on dates the particulars of which are unknown to the State

and at several places in the Caprivi Region and/or Windhoek where it was

conspired to undermine the authority of the State and/or Government of Namibia

in the Caprivi Region by means of force and/or violent means, which meetings

had the aim to,

- Recruit persons or encourage persons to flee Namibia for Botswana or

other countries to join or become refugees in such countries, and /or;

- Encourage people to join the secessionist movement whose aim was to

separate Caprivi Region from Namibia, and/or;

- Donate money or other valuables to assist the secessionists in the

furthering of their aims; and/or

- To assist others to leave Namibia by way of providing transport, food,

accommodation and other assistance.

2. Shouting slogans, waving placards, and/or acting in such a manner or use a

language in such a manner or propagate certain viewpoints on political ideas,

that would have the effect of undermining the authority of the State in the Caprivi

region or elsewhere in Namibia.’

[4] Alternative to count 2 reads as follows:

‘ALTERNATIVE COUNT TO COUNT 2:

14

That the accused is guilty of contravention sections 3(a), 3(b), 3(c) or 3(d) of Act 71 of 1982.

In that upon or between July 2000 and May 2003 on days being a Saturday, Sunday or

public holiday, at or near Grootfontein Magistrate’s Court and/or at or near any building in

which a Circuit Court at Grootfontein in a court-room is situates or a place in the open air

within a radius of five hundred meters from a Court in the district of Grootfontein the accused

did wrongfully and unlawfully and without the permission of the magistrate,

a) Convened or organised a demonstration or gathering, or encourage, promote or

by means of force or threats cause the demonstration or gathering or

participation threat or address it; and/or

b) Print, publish, distribute or in any manner whatsoever circulate a notice

convening or organising the proposed gathering or demonstration; and/or

c) Attend or take part in any such prohibited demonstration or gathering; and/or

d) Demonstrate in contravention of Section 2(1) of the Act.’

[5] The third count of public violence reads as follows:

‘COUNT 3

That the accused is/are guilty of the crime of PUBLIC VIOLENCE.

IN THAT upon or about the 2nd day of August 1999 and at or near Katima Mulilo the said

accused and other persons, numbering more than 150 or there about, did unlawfully

assemble with common intent to forcibly disturb the public peace or security to invade the

rights of other persons, and the accused and the said persons acting in concert, did then

and there unlawfully and intentionally:

1. Attack members of the Namibian Police at various places; and or

2. Attack members of the Namibian Defence Force; and/or

3. Damage buildings belonging to the Namibian Government; and/or

4. Damage vehicle belonging to the Namibian Government;

5. Fires lots of firearms as well as with mortars and rocket launchers at various places

and persons in the Caprivi Region.’

[6] The fourth count of public violence reads as follows:

‘COUNT 4

THAT the accused are guilty of the crime of PUBLIC VIOLENCE.

15

IN THAT upon or about 18 April 1999 and at or near Chinzimane in the district of Katima

Mulilo the accused and other persons numbering twenty or there about, did unlawfully

assemble with common intent to forcibly disturb the public peace or security or to invade the

rights of other persons, and the said accused and the said persons acting in concert, did

then and there unlawfully and intentionally:

1. Fired several shots in the air and/or

2. Shouted and threatened to kill Chief Simasiku and/or Brian Lubeile Lisepo and/or

destroy the Khuta should he or the Khuta not support the secession of Caprivi from

Namibia and/or the taking over of the authority of the state in Caprivi.’

[7] The alternative to count 4 relates to the alleged contravention of s 1(1)(b) of

Proclamation AG 24 of 1989 in respect of threats directed at two individuals. The

murder charges had allegedly all been committed on the same day (save for count

12), namely on 2 August 1999 and the following persons had been killed: Cst Japhet

Kamati, warrant officer Majority Siloiso, Capt. George Mutafela, Lucas Simubali,

Mabuku Jameson Matonga, Gabriel Paulus, Cst. Richard Mwakamui and Gilbert

Simasiku Tubabe. The person killed in respect of count 12 was one Victor Falali.

Address by the State

[8] What the State endeavoured to achieve by calling 379 witnesses during the

course of the trial can be gleaned from the opening address of Mr July in the

following words:

‘MR JULY: In our system of law as in the legal system of most

communities of the world, it is not criminal to seek political reform. Constitutional changes

however far reaching, however radical and far reaching may be lawfully sought by legitimate

and constitutional means only. When the methods used become unlawful and

unconstitutional individuals using them commit high treason. It is, together with other

charges of the crimes which have been committed by those involved in the armed rebellion

in the Caprivi Region on the 2nd of August 1999. These would be the charges which the

State has set itself out to prove during this trial. The State will seek during this trial to bring

within the scope of the single prosecution, the development of the events which calumniated

into the attacks in the Caprivi Region on the second of August 1999. To this end, reference

will be made to events in other countries, i.e. Zambia, Botswana an Angola involving many

individuals in numerous events and last but not least, a number of documents that will show

that the events on the 2nd of August 99 in the Caprivi Region were premeditated with the aim

of overthrowing the legitimate Government of Namibia in the Caprivi Region. The State will

16

show that the armed secession in the Caprivi Region was planned by the political leadership

of the United Democratic Party, executed by the soldiers of the Caprivi Liberation Army and

supported by those who have similar aims and objectives of seceding Caprivi from the rest

of Namibia by military means. The State will lead evidence during this trial that will prove

beyond reasonable doubt that each of the accused having acted individually and collectively

committed criminal acts against the sovereign state of the Republic of Namibia under the

pretext of seeking political emancipation from Namibia. This objective was to have been

achieved through the use of violence. Some of the accused, together with their leaders

participated in the drafting of Namibia’s Constitution and some took up key positions in the

Government of the Republic of Namibia. Some of the accused participated in the creation of

the Government of National Unity in Namibia for the process of elections during 1989. It is a

notorious fact that Namibia’s Constitution provides that Namibia shall be governed as a

unitary state. Article 1(1) of the Constitution provides as follows, that the Republic of Namibia

is hereby established as a sovereign secular, democratic and unity state founded on the

principles of democracy, the rule of law and justice for all. Article 1(4) further provides the

national territory of Namibia shall consist of the whole of the territory recognised by the

International Community through the organs of the United Nations as Namibia, including the

enclave, harbour and port of Walvis Bay, as well as the offshore islands of Namibia and its

southern boundaries shall extent to the middle of the Orange River. This Constitution is

internationally regarded as one of the most liberal Constitutions in the world that guarantees

to all its people, civil liberties consistent with those of democratic nations in the world. The

State will show that the actions of the accused were performed in pursuance with a

conspiracy and with the knowledge and agreement of each accused who intent upon

subverting the constitutional structure of Namibia in the Caprivi Region by military means.

The evidence will show that these acts were preceded by inter alia the holding of meetings

where the idea of the violent secession of the Caprivi Region from Namibia was promoted,

the obtaining of weapons of war, the establishment of the rebel army, the establishment of

various rebel bases in Namibia and on foreign soil, and the recruiting of soldiers for the army

and persons in support of the secessionist idea. The State will further show that strategic

targets that were attacked were identified beforehand by those involved in the attack on the

2nd of August 99. In pursuance of these objectives, the accused killed, injured and damaged

property of law abiding citizens of the Republic of Namibia in the Caprivi Region. The State

will prove that a conspiracy existed amongst those involved that wanted to overthrow the

Namibian Government in the Caprivi Region. In preparation of these attacks, persons were

recruited in the Caprivi Region to leave Namibia in order to be trained in the use of automatic

firearms and explosives. Testimony will be led about the supporters of the rebels who

provided logistic and other support while the rebels were in the rebel camps preparing for the

attacks. The State proposes to arrive at the following overall picture, that the accused

17

participated in a conspiracy over the period covered in the indictment, but in reaching this

aim, rebel bases were established in the Caprivi Region and in neighbouring countries to

train the rebels; that meetings were held in various, was held at various times in around the

Caprivi Region with the aim of supporting the military insurrection of Namibia in the Caprivi

Region; that the exodus of people fled to Botswana and who wanted to return to Namibia in

order to overthrow the Government of Namibia in the Caprivi Region by violent means; that a

accused gathered at various rebel bases in order to prepare for the violent takeover of the

Namibian Government in the Caprivi Region; that shortly before the attack on the 2nd of

August 99, Makango Rebel Base became the prominent gathering place for the rebels from

where they were supposed to attack various targets in the Caprivi Region; that on the 2nd of

August 99, attacks took place in the Caprivi Region on different targets, where people were

injured, killed and where properties were damaged. The State will further prove that political

originations were involved in promoting of the military secession of the Caprivi Region from

the rest of Namibia. The accused are not on trial because of their political believes or

affiliations, but because of the criminal actions that they waged against the Namibian

Government and its people on the 2nd of August in the Caprivi Region. The Namibian people

are a peace loving nation who cherishes the heart for freedoms that we as Namibians enjoy

and never again should any Namibian have to resolve to violence to settle national

differences. They could and should be solved through dialogue and persuasion as provided

for in the constitution of Namibia. Namibia is a constitutional democracy governed by the rule

of law. At the conclusion of this trial, the State would ask the Court to evaluate the actions of

the accused that are contrary to the Laws of Namibia. The State does not propose that the

political aspirations of the Accused be judged, for this can be lawfully sought, provided it is

done by legitimate means and in accordance with the Constitution of Namibia. The State

intends to prove that the accused acted contrary to the law of Namibia and would pray at the

end of this trial that those are found criminally accountable for their actions. My Lord I ask

that that be handed in as part of the documentation as an exhibit. As it pleases My Lord.’

[9] It is necessary at this stage, before considering the evidence against each

accused person, to briefly deal with the common law offences of high treason,

sedition and public violence.

Common law principles of High Treason

[10] The authors in the work South African Law and Procedure2, describe the

elements of high treason as follows:

2 Milton JRL. 1996. South African Criminal Law and Procedure. Cape Town: Juta & Co, p 20.

18

‘The essential elements of treason are: (a) an overt act, (b) unlawfully committed, (c)

by a person owing allegiance to the State, (d) which possesses majestas, and (e) intention

(‘hostile intent’).’

[11] In S v Banda3, at 479C-E, Friedman J defined high treason as ‘any overt act

committed by a person, within or without the State, who, owing allegiance to the

State, having majestas, with the intention of:

‘(1) unlawfully impairing, violating, threatening or endangering the existence,

independence or security of the State;

(2) unlawfully overthrowing the government of the State’

(3) unlawfully changing the constitutional structure of the State; or

(4) unlawfully coercing by violence the government of the State into any action

or into refraining from any action.’

[12] CR Snyman4 at 301 stated in respect of the word maiestas, that “though

somewhat vague, denoted in principle the idea of supreme power or sovereignty”.

The writer is of the view that in a sovereign independent State which does not

acknowledge any higher authority the requirement of maiestas is no longer

necessary.

The actus reus

[13] An overt act is any act, if viewed objectively, which is seemingly and

apparently to all appearances innocent, may establish treason if it is performed with

an hostile intent.5

[14] The State need not actually be overthrown before high treason is committed.

Attempts to destroy the existence, independence or safety of the State are

punishable as completed and not attempted high treason.6 Incitement or conspiracy

to commit high treason are overt acts of the crime of high treason.7 No distinction is

made in high treason between the perpetrators of the act, the accomplice or the

accessory after the fact, because every person who, with hostile intent, assists in the

3 1990 (3) SA 466. 4 Synam CR. 2014. Criminal Law (6th Edition). Durban: LexisNexis,5 See S v Banda, supra at 473-474A; R v Leibrandt and others 1944 AD 253 at 284; R v Wentzel 1940 WLD 269 at 275.6 See Snyman, p 306.7 See Banda supra at 474.

19

commission of the crime, whether before or after the event, conforms to the wide

definition of the crime.8

[15] However a mere discussion of the possibility of acts of treason, not resulting

in any agreement, nor including any mutual incitement, does not amount to high

treason.9

[16] An overt act may manifest itself in a variety of forms. It may take the form of

verbal communications or written communications, if an individual speaks or writes in

the furtherance of an intent to overthrow, or violating the independence of the State,

or to coerce the government into action or refraining from any action. A declaration of

allegiance to a leader of an organisation who has declared support for an armed

struggle or for liberation or independence of a part of a unitary State would amount

to high treason.10

[17] An overt act may also be in the form of an omission. Friedman J in S v Banda

at 572A-B states the following:

‘According to the authorities that I have cited the crime of treason provides an

exception to the rule as to mere non-disclosure. It seems clear that anyone who, knowing of

the commission of this crime, refrains from giving information to the authorities must by

reason of this mere non-disclosure be regarded as having taken part in treasonable conduct.

Even bare knowledge of its attempt or commencement without disclosure of the same to the

authorities may render a person liable, even though the person has in no way taken part in

the plans of the principal offender. The afore-mentioned must apply with greater force to a

member of the armed forces, who has sworn an oath of allegiance to the State.’

Common purpose

[18] Hoffman and Zeffert 11 on p 190 on the issue of acts and declarations in the

furtherance of a common purpose have the following to say:

‘2 Acts and declarations in furtherance of a common purpose:

8 See Banda supra, at 474E.9 See Banda, Supra, at 474F.10 See S v Leibrandt and Others, supra, p 265, 273.11 Hoffman LH et Zeffertt D. 1989. The South African Law of Evidence. Durban: Butterworth’s.

20

There is some uncertainty as to whether this topic should be treated as an exception to the

rule that admissions are not vicariously admissible. Some say that it should; but the better

view, it is submitted, is that the reception of the declarations of persons engaged in a

common purpose stands on the same footing as acts done; in other words, they are received

when they are relevant acts. They are relevant, as will be seen below, when they are

“executive” statements; they are inadmissible when they are “narrative”, that is to say, when

they are not made in furtherance of a common purpose but as an account or admission of

past events. An admission contained in narrative is inadmissible precisely because

admissions are not, in general, vicariously admissible; but they may, of course, be received

against the persons making them.’12

[19] Executive statements may only be taken into account where there is evidence

aliunde laying the foundation of a common purpose. Boshoff J in S v Moumbaris and

Others13 at 685H-686A stated the following in this regard:

‘Once there is evidence aliunde of a common enterprise and the parties thereto, the

acts and statements, executive as opposed to narrative, of one of the socii criminis or co-

conspirators are admissible to confirm the scope of the common enterprise or the conspiracy

and the nature of the steps taken to carry it out, and there seems to be no reason why such

evidence should not be used to confirm the other evidence as to the parties who took part

therein; see judgment of Schreiner JA, as quoted in R v Leibbrandt and Others 1944 AD 253

at p 276; R v Mayet, 1957 (1) SA 492 (AD) at p 494.’

[20] Friedman J in Banda at 500J-501F explained the concept of common purpose

as follows:

‘It is a convenient and useful descriptive appellation of a concept, that, if one or more

persons agree or conspire to achieve a collective unlawful purpose, the acts of each one of

them in execution of this purpose are attributed to the others. The essential requirement is

that the parties thereto must have and did in fact have the same purpose – that is a common

purpose.

“The basis of this doctrine is the idea that such member of the plot or conspiracy

gave the other an implied mandate to execute the unlawful criminal act.” (Snyman

(op cit at 212) ). There need not necessarily be a conspiracy. On principle, it is sufficient if

collaboration or association commenced without premeditation and spontaneously as in the

12 See Banda supra p 506G-507A.13 1974 (1) TPD 681.

21

so-called “join-in” cases. The courts held “that association in the common design makes the

act of the principal offender the act of all’. Furthermore, the association need not be express,

but may also be implied and inferred from conduct. I need not for the purpose of this case

concern myself with the controversy surrounding the issue of causality, nor analyse the

conflicting judgments relating thereto. Although this doctrine has been criticised by Snyman

and Rabie who is critical of an approach that does not take into account the causal

contribution of each participant in a common purpose, I nevertheless believe that the

doctrine of common purpose is a useful and practical method of determining liability or

innocence where more than one person is involved in a joint unlawful activity pursuant to

their common design and objective, subject, however, to certain stringent conditions. An

accused cannot be found guilty of sharing a common purpose with other accused by a

process of osmosis. In the absence of a prior agreement or conspiracy, the doctrine of

common purpose may not be used as a method or technique to subsume the guilt of all the

accused without anything more. It cannot operate as a dragnet operation systematically to

draw all the accused. Association by way of participation, and the mens rea of each accused

person involved, are necessary and essential requirements.” ’

[21] In S v Mgedezi and Others14 at 705I-706C, Botha JA stated the following

regarding concept of common purpose:

‘In the absence of proof of a prior agreement, accused no. 6 who was not shown to

have contributed causally to the killing or wounding of the occupants of room 12, can be held

liable for those events, on the basis of the decision in S v Safatsa and Others 1988 (1) SA

868 (A), only if certain prerequisites are satisfied. In the first place he must have been

present at the scene where the violence was being committed. Secondly, he must have

been aware of the assault on the inmates of room 12. Thirdly, he must have intended to

make common cause with those who were actually perpetrating the assault. Fourthly, he

must have manifested his sharing of a common purpose with the perpetrators of the assault

by himself performing some act of association with the conduct of the others. Fifthly, he must

have had the requisite mens rea; so, in respect of the killing of the deceased, he must have

intended them to be killed and performed his own act of association with recklessness as to

whether or not death was to ensue.’15

14 1989 (1) SA 687 (AD).15 See also S v Jama and Others 1989(3) SA 427(AD) at 436I.

22

[22] The existence of an agreement may be proved by way of an inference from

the facts and from circumstantial evidence. In Magmoed v Janse van Rensburg 16

the following was said by the court at 96E-F:

‘It is seldom that there is a direct evidence of such an agreement. Usually the court is

asked by the prosecution to infer it from the proven facts. But the fact that in a particular

case the prosecution relies upon inference to prove the agreement to accomplish a common

aim does not make the question as to whether the prosecution succeeded in establishing

this inference beyond doubt one of law.’

[23] In S v Thebus and Another 17 the Constitutional Court in South Africa had the

following to say:

‘The reliability requirements of a joint criminal enterprise fall into two categories. The

first arises where there is a prior agreement, expressed or implied, to commit a common

offence. In the second category, no such prior agreement exists or is proved. The liability

arises from an active association and participation in a common criminal design with the

requisite blameworthy state of mind.’

Hostile intention

[24] The hostile intention (animus hostiles) accompanying the act has been

described as the definitive element of high treason. Motive is irrelevant in the

commission of high treason. Hunt18 referred to a judgment in R v Leibbrandt where at

281 Schreiner J drew the distinction between motive and intention as follows:

‘Treason may be committed and the hostile intent be entertained with a view to

achieve some further purpose. The ultimate goal may be the achievement of some solid or

economic advantage for a portion or even for the whole community. It may be the

achievement of some political or ideological theory, or it may be the fulfilment of personal

ambition or the wreaking of personal hatred. None of these ultimate motives is relevant to

the enquiry whether treason has been committed or not. Whatever the factors are that

induce a citizen to entertain an intention to help the enemy, or to weaken the effort against

the enemy, if he acts in order to carry out that intention he commits an act of treason.’

16 1993 (1) SA 67 (A).17 2003 (2) SACR 319(CC). 18 Milton, p 33.

23

[25] Hunt at 34 states as follows:

‘Though an intent to overthrow the State certainly does constitute “hostile intent”,

hostile intent” is not confined, to this state of mind. Someone who intends “to coerce the

governing authority” by force, but has no intent to overthrow it, has “hostile intent”. ’

[26] ‘Hostile intent’ is a subjective, and not an objective element of the offence of

high treason. In R v Leibbrandt (supra at 284) Watermeyer J stated:

‘Now, clearly intention is something subjective, a state of mind which is incapable of

direct proof by witnesses. It can only be proved by inference from the acts and expressions

from the accused and from the surrounding circumstances.’

[27] Violence or force is not a prerequisite for the crime of high treason.19 In R v

Strauss 20 at 940 the following appears:

‘The requirement in the definition of high treason that the actions complained of must

have been done with hostile intention against the State does not mean that an accused must

have been animated by feelings of hatred or ill-will towards the State but merely that he was

intentionally antagonistic towards it.’

Common law principles on Sedition

[28] Sedition according to Snyman consists in unlawfully and intentionally taking

part in a concourse of people violently or by threats of violence challenging, defying

or resisting the authority of the State or causing such a concourse. The intention

required (not necessary hostile) is only to resist or challenge the authority of the

State without the object of overthrowing the government of the State and can be

committed by someone who owes no allegiance to the State.

[29] Contrary to Snyman’s view that violence is a necessary element of the crime

of sedition, the courts have over the years not included violence as an element of

this crime.

19 S v Banda, supra at 476E-F.20 1948 (1) SA 934 (A).

24

[30] In S v Twala and Others21 the court referred with approval to the decisions of

R v Endemann22 and R v Viljoen23 and Van Dyk J at 869G-H stated the following:

‘The gathering need not be accompanied by violent and forcible conduct and

violence is certainly not an essential part of the seditions gathering. What is essential is that

the gathering occurs with the necessary intent – see in this regard Endemann’s case at 147

at Viljoen’s case. Reliance on R v Klaas and Others 1915 CPD 58 at 63 for the contrary

proposition, ie that acts of violence should have been committed, cannot be supported as

INNES CJ in Viljoen’s case effectively incorporated the whole of DE VILLIERS’ judgment in

the Endemann case as far as the elements of sedition are concerned, where DE VILLIERS

JP specifically found that “to constitute the crime of sedition it is not necessary that acts of

violence should have actually been committed”.’

Moreover, if regard is had to the quality of the intention required, namely to defy or subvert

the authority of the State or its officials, there is no logical reason why violence must be

regarded as a natural concomitant, or an essential element of a seditious gathering.’24

Common law principles on Public Violence

[31] Snyman defines the crime of public violence as the unlawful and intentional

commission, together with a number of people, of an act or acts which assume

serious dimensions and which are intended forcibly to disturb public peace and

tranquillity or to invade the rights of others. This definition was quoted with approval

in S v Mlotswha.25

[32] Milton in Hunt26 mentions that the crime of ‘public violence has the unusual

feature that it involves punishment of an individual for the unlawful conduct of a

crowd of people. In other words, the crime of public violence does not require that

the wrongdoer should have committed some act of violence; it is sufficient that he

associated himself with the group of people who collectively perpetrated acts of

violence. The justification for substituting liability based upon the offender’s own act

and intent for liability based on the acts of the crowd is the following:

21 1979 (3) SA 864 TPD.22 1915 TPD 142.23 1923 AD 90.24 See also S v Zwane and Others (3) 1989 (3) SA 253 WLD at 261C.251989 (4) SA 787 (WLD) at 794E. 26 Milton, Vol II.

25

‘A person who is part of a group will draw courage from the conduct of others in the

group, and may well behave in ways that he would not act when alone. His chances of

detection are, in the nature of things, rather lower when he can hide in the rabble . . . .

[W]here several people are together acting violently, their weight of numbers in itself

increases the danger to public order inherent in their conduct.’27

[33] Milton (supra) continues at 76 as follows:

‘The essential point of distinction between public violence and high treason and

sedition lies in the fact that the latter two crimes are committed against the majestas of the

state: high treason requires an intention to overthrow or coerce the executive (hostile intent);

sedition requires an intention to defy or subvert the government’s authority. In public

violence there need be no defiance or nor attack on the public authorities. The three crimes

overlap where a number of people acting in concert and with hostile intent assemble and

disturb the public peace.’

Conspiracy

[34] Burchell and Milton 28 defines conspiracy as ‘an agreement between two or

more persons to commit or to aid or procure the commission of a crime.’ In S v

Moumbaris and Others 29 the court said the following in respect of conspiracy:

‘When considering the liability of the respective conspirators, it should be borne in

mind that everything done by any one of the conspirators in furtherance of the common

purpose is evidence against each and all the parties concerned, whether they are present or

absent and whether or not they were individually aware of what was taking place.’

[35] In S v Cooper and Others30 the following appears:

‘Although the common design is the root of a conspiracy, it is not necessary to prove

that the conspirators came together and actually agreed in terms to have the common

design and to pursue it by common means and so carry it into execution. . . .The detached

27 Smith ATH, Offences against Public order (1987) 3.28 Burchell and Milton.1997. Principles of Criminal Law (2nd Edition).Pietermaritzburg: Juta & Co, p 455.29 1974 (1) SA 681 (TPD) at 687E-F. 30 1976 (2) SA 875 (TPD) at 879E-F.

26

acts of the different persons accused, including their written correspondence, entries made

by them, and other documents in their possession, relative to the main design, will

sometimes of necessity be admitted as steps to establish the conspiracy itself. It is generally

a matter of inference deduced from certain acts of the parties’ concerned, done in pursuance

of a criminal purpose in common between them.’

[36] Disassociation may be raised as a defence in respect of a criminal charge and

in S v Ndebu and Another 31 the court, as per McNally JA, expressed itself as follows

at 135F:

‘It would seem clear that English law requires more than a simple last minute

withdrawal to enable a participant to escape a verdict of guilty on the main offence’

And with reference to an American case stated the following at 135H-I:

‘A declared intent to withdraw from a conspiracy to dynamite a building is not

enough, if the fuse has been set; he must step on the fuse.’

[37] In S v Beahan 32 the court held (per Gubbay, CJ) as follows on 324b:

‘I respectfully associate myself with what I perceived to be a shared approach,

namely, that it is the actual role of the conspirator which should determine the kind of

withdrawal necessary to effectively terminate his liability for the commission of the

substantive crime. I would venture to state the rule this way: where a person has merely

conspired with others to commit a crime but has not commenced an overt act towards the

successful completion of that crime, a withdrawal is effective upon timely and unequivocal

notification of the co-conspirators of the decision to abandon the common unlawful purpose.

Where, however, there has been participation in a more substantial manner something

further than a communication to the co-conspirators of the intention to dissociate is

necessary. A reasonable effort to nullify or frustrate the effect of his contribution is required.’

And at 324 d-e:

‘Clearly mere absence of physical presence from the crime, or a physical change of

place or flight from the scene, even if in consequence of voluntary action may not,

depending on the circumstances, serve to dissociate a co-conspirator for the ensuring

criminal activity.’

31 1986 (2) SA 133 (ZSC).32 1992 (1) SACR 306 (ZS).

27

Burden of proof on the State

[38] It is trite law that in a criminal trial the onus is on the State to prove the

commission of the offence beyond reasonable doubt and that there is no onus on an

accused person to prove his or her innocence.

[39] In S v Van der Meyden33 Nugent, J stated the following in respect of the

State’s burden of proof:

‘Counsel for the accused referred us to three cases which are frequently cited in this

Court in elaboration upon that test. In S v Kubeka 1982 (1) SA 534 (W) Slomowitz AJ said

the following at 537F--H:

“Whether I subjectively disbelieve (the accused) is not the test. I need not even reject

the State case in order to acquit him. I am bound to acquit him if there exists a reasonable

possibility that his evidence may be true.”

That passage does no more, in effect, than to reiterate that the conclusion of a criminal court

is not to be reached merely by choosing what it considers to be the better of two competing

versions (Hlongwane's case supra at 341A; S v Singh 1975 (1) SA 227 (N)). Purely as a

matter of logic, the prosecution evidence does not need to be rejected in order to conclude

that there is a reasonable possibility that the accused might be innocent. But what is

required in order to reach that conclusion is at least the equivalent possibility that the

incriminating evidence might not be true. Evidence which incriminates the accused, and

evidence which exculpates him, cannot both be true - there is not even a possibility that both

might be true - the one is possibly true only if there is an equivalent possibility that the other

is untrue. There will be cases where the State evidence is so convincing and conclusive as

to exclude the reasonable possibility that the accused might be innocent, no matter that his

evidence might suggest the contrary when viewed in isolation. S v Munyai 1986 (4) SA 712

(V), to which we were also referred by counsel, should accordingly, in my view, be

approached with some circumspection. At 715G Van der Spuy AJ interpreted the

abovementioned passage from Kubeka's case as follows:

“In other words, even if the State case stood as a completely acceptable and

unshaken edifice, a court must investigate the defence case with a view to discerning

whether it is demonstrably false or inherently so improbable as to be rejected as false.”

33 1992 (2) SA 79 (W) 81C-82A.

28

It is difficult to see how a defence can possibly be true if at the same time the State's case

with which it is irreconcilable is 'completely acceptable and unshaken'. The passage seems

to suggest that the evidence is to be separated into compartments, and the 'defence case'

examined in isolation, to determine whether it is so internally contradictory or improbable as

to be beyond the realm of reasonable possibility, failing which the accused is entitled to be

acquitted. If that is what was meant it is not correct. A court does not base its conclusion,

whether it be to convict or to acquit, on only part of the evidence. The conclusion which it

arrives at must account for all the evidence.’

[40] Nugent, J continues at 82C-E as follows:

‘The proper test is that an accused is bound to be convicted if the evidence

establishes his guilt beyond reasonable doubt, and the logical corollary is that he is entitled

to be acquitted if it is reasonably possible that he might be innocent. The process of

reasoning which is appropriate to the application of that test in any particular case will

depend on the nature of the evidence which the court has before it. What must be borne in

mind, however is that the conclusion which is reached (whether it be to convict or to acquit)

must account for all the evidence. Some of the evidence might be found to be false; some of

it might be found to be only possibly false or unreliable; but none of it may simply be

ignored.’

[41] The Supreme Court of Appeal in South Africa in S v Van Aswegen34 endorsed

this approach where the following was said by Cameron JA:

‘It was contended on behalf of the appellant that the fact that the magistrate had not

expressly rejected the evidence of the appellant’s father, who had corroborated his alibi,

meant that the appellant could not have been convicted on the evidence. This argument is

founded on a misconception which had its origin in cases such as S v Kubeka and S v

Munyai.’

and at 101(a)

‘In respect of these erroneous constructions, the approach and criticism expressed in

S v Tellingen35 and S v Van der Weyden were in my view correctly expressed….’ (Free

translation)

34 2001 (2) SACR 97 at 100f.35 1992(2)SACR 104 (C) at 106a-h.

29

[42] Where there is a conflict of fact between that which had been presented as

evidence on behalf of the State and that of an accused person this Court in S v

Katjingisua36 (per Mtambanengwe AJ concurred by Damaseb JP) quoted with

approval what was said in S v Singh37 at 228F-H:

‘…..it would perhaps be wise to repeat once again how a court ought to approach a

criminal case on fact where there is a conflict of fact between the evidence of the State

witnesses and that of an accused. It is quite impermissible to approach such a case thus:

because the court is satisfied as to the reliability and the credibility of the State witnesses

that, therefore, the defence witnesses, including the accused, must be rejected. The proper

approach in a case as this is for the court to apply its mind not only to the merits and

demerits of the State and defence witnesses but also to the propabilities of the case. It is

only after so applying its mind that a court would be justified in reaching a conclusion as to

whether the guilt of an accused has been established beyond reasonable doubt’.

[43] Mr January during his submissions stated that should this court find that

sufficient evidence has been presented by the State to establish the crime of high

treason or sedition, the other charges in the indictment should be regarded as overt

acts to the charges of high treason and sedition and that the prosecution of these

other charges should be regarded as being stopped on the instructions of the

Prosecutor-General, except the charges of murder and attempted murder.

Facts not in dispute

[44] Mr Kauta in his heads of arguments during an application for a discharge in

terms of s 174 of the Criminal Procedure Act, 1977 (Act 51 of 1977)(heard during

September 2012) stated that the following facts are either common cause or not

seriously disputed:

‘That the Republic of Namibia is a sovereign State; that the accused persons owe

allegiance to the Republic of Namibia; that the Caprivi Liberation Army was formed in 1989;

that various public and private meetings were held in different places in the Caprivi Region

between 1992 and 1998; these meetings discussed the secession of the Caprivi Region

from the Republic of Namibia by either violent or diplomatic means; that Mr Muyongo’s army

set up camp in October 1998 at Lyibu-Lyibu on the eastern side of Linyanti in preparation of

36 2005 (3) NCLP 26.37 1975 (1) SA 227 (NPD).

30

liberating Caprivi by violent means, and that one Victor Falali was killed after he escaped

from this camp at Linyanti; that a group of 92 armed individuals fled to Botswana shortly

afterwards; that inhabitants from the Caprivi Region started fleeing to Botswana in order to

seek education, employment and an opportunity to liberate the Caprivi Region by violent

means; that the conspiracy to secede the Caprivi Region from the rest of Namibia continued

unabated in Botswana; that a plan was hatched in Botswana that refugees should escape

and return to Namibia; that a group of approximately 100 Namibian men with fire-arms from

Angola gathered at Navumbwe Island were treated by a traditional healer in preparation for

the imminent attack on the Caprivi Region; that on 1 August 1999 the plans the culminated

in a meeting held at Linyanti at which Geoffrey Mwilima said ‘we who fall under UDP, we

cannot go for that issue. We have just to cut Caprivi from the rest of Namibia’; that from 31

July 1999 to 1 August 1999 people gathered at Makanga in preparation for the attack; that at

Makanga those present were transported in a government owned TATA truck and were

registered in writing and thereafter divided into various groups in order to attack specific

targets; that at Makanga after final instructions the co-conspirators were transported and

some walked to their various destinations of attack; that on 2 August 1999 various

Government institutions in the Caprivi Region were attacked with mortars and fire-arms; that

the institutions that were attacked were ‘Katounyana Special Field Force base, Katima Mulilo

police station; Wanela border post, Katima Mulilo town centre; the Namibian Broadcasting

Corporation in Katima Mulilo, and the house of a police officer sergeant Patrick Liswani; that

the attackers had tied red ribbons around their heads; that as a result of the attack eight

police officers lost their lives; that a state of emergency was declared in the Caprivi Region

and Inspector Goraseb was instructed ‘to arrest all the prominent and executive members of

the United Democratic Party ,(UDP)’; and that after the attack people regrouped at

Cameroon, Masokokotwane, Malongwa Island and Kaliyangile.’

I agree with this synopsis.’

[45] I shall now deal with the evidence presented against individual accused

persons and shall first deal with those accused persons who are being represented

by Mr Kauta.

Acccused persons who testified: Clients of Mr Kauta

Bollen Mwilima Mwilima (accused no. 65)

[46] This witness was warned in terms of the provisions of s. 204 of Act 51 of

1977. Oscar Munisitwela Mwisepi (Mwisepi) testified that the accused is his cousin

31

and that the accused discussed the issue of secession anywhere he was. Mwisepi

testified that the accused had offered his vehicle with registration number N807KM to

be used to transport Mr Mishake Muyongo (Muyongo) to Botswana. Mwisepi testified

that one Thadeus Ndala (Accused no 70) brought food to Sanchona rebel camp with

a white Hilux motor vehicle belonging to the accused. The accused was identified in

court as the owner of that vehicle.

[47] Mwisepi claimed to know the activities which led to the attack on 2 August

1999. He testified that during the year 199838 he attended a meeting at Liselo village

in the Liselo area in which meeting Muyongo was the chairperson. One topic of

discussion was the resuscitation of the DTA party and the second topic discussed

(not in detail) was the formation of an army. The purpose of this army was to be used

as an instrument of de-linking the Caprivi region from the rest of Namibia. During

cross-examination the witness claimed that the reference to the DTA party was a

mistake since he meant the UDP party.

[48] Nothing turns on this apparent contraction since it is common knowledge that

the DTA was never inactive and in need of resuscitation and the witness conceded

that it was a mistake. Mwisepi testified that the idea of the formation of an army

came from Muyongo. He (ie Mwisepi) was interested in this idea because according

to him it was a brilliant idea and that the other attendants at the meeting were also

‘happy’ with this idea.

[49] At this meeting the attendants were called to register for enlisting in this army

and a number of attendants including himself registered. Two persons at this

meeting who acted as interpreters were on Alfred Tawana and one Frances Sizimbo.

The first task of the army would have been to ‘sabotage’ bridges at Kongola and

Divundu. The witness could recall the names of two people who assisted with the

registration of the attendants namely, one Thadeus Ndala and one Eugene Ngalaule.

This witness was tasked inter alia to persuade people to join those already ‘in the

bush’ and to arrange transportation for people to Botswana. Eugene Ngalaule and

Fabian Simiyasa performed similar roles as this witness. The witness testified that

the reason for assisting people to go to Botswana was to ‘enhance the idea of

seceding Caprivi.’

38 Page 610 of record, Vol 1.

32

[50] Mwisepi testified that he arrived at Dukwe refugee camp (near Francis Town)

in Botswana on 7 January 1999 where private meetings were held in which the

secession of the Caprivi region was discussed. One of the methods to achieve this

aim was through the ‘barrel of the gun’, the other one by way of negotiations. During

May 1999 he returned to Namibia through voluntary repatriation. A second meeting

was held in the Ngweze community hall where the topic to be deliberated on was the

suspension of Muyongo from the DTA party without notice to members of the DTA in

the Caprivi region and that a demonstration was planned in protest to the manner

Muyongo was treated. This meeting was apparently disrupted by members of the

SWAPO party.

[51] The witness testified that a demonstration was held during the month

September (after a third meeting had been held). After they had received certain

information from Muyongo at his house they ran to the DTA office where his ‘parent’,

Geoffrey Mwilima made an unforgettable speech: ‘Caprivi is Muyongo, Muyongo is

Caprivi and no one can separate these two things from each other.’ The witness

testified that they left the DTA office and proceeded to town followed by a group of

Intelligence officers. Subsequently there was an exchange of blows and at one stage

this witness together with Tadeus Ndala ‘confiscated’ a notebook belonging to one of

the officers.

[52] The witness testified that he attended a number of meetings after his return to

Namibia and was unable to recall all meetings that he had attended but referred to a

meeting convened at the house of Gabriel Mwilima Mwilima in Katima Mulilo in which

he had been present for a short period. During this meeting one of the issues

discussed was the escaping of the Steven Mamili group together with six individuals

from Botswana to Namibia. He left this meeting early due to the fact that one Chris

Muchana had labelled him (the witness) as an informer.

[53] Another meeting was also held at the house of Gabriel Mwilima who had

invited the witness to the meeting. That meeting was chaired by one Devil Kavo

Mowa. At this meeting issues concerning the ‘renegades’ in the bush who were

preparing themselves to come and fight, were discussed.

33

[54] Regarding the attack on Katima Mulilo the witness testified that he had been

informed by ‘many people’ including one Gabes Mwilima Mwilima and Devil Kavo

Mowa that the attack would take place on 1 August 1999. Accused 65 was identified

by this witness in Court.

[55] During cross examination by Mr Kauta this witness testified that he did not

participate in the attack on 2 August 1999; that he returned to Namibia from

Botswana to overthrow the Government by ‘military means’; in Dukwe there were no

weapons and no uniforms; that he believed that after the independence of Caprivi he

would get employment; that after the attack on 2 August 1999 the witness attempted

to regroup the ‘movement’ for a second attack; that Victor Makando (accused no 90)

was present at the meeting but said nothing and was just an attendant; that

Malicious Simone (accused no 85) was present at the meeting but said nothing; that

Linus Chombo Chombo (accused 82) was at the meeting but said nothing; that Linus

Chombo never discussed secessionist ideas with the witness and that the witness

wondered how accused 82 found himself there at the meeting; that he (ie this

witness) was not present when Muyongo left for Botswana from his house and that

the witness was not at the border when Muyongo crossed into Botswana; that

Gabriel Mwilima and Bollen Mwilima were arrested outside Dukwe refugee camp and

as a result of their arrest, they (ie the refugees) staged a demonstration inside the

camp; that Gabriel Mwilima and Bollen Mwilima were subsequently removed and

taken to a place called Nata; and that the accused knew the witness very well since

the witness is related to him.

[56] This witness testified that prior to the demonstration he had a conversation

with Bollen Mwilima regarding the secession of Caprivi and insisted that such

conversation indeed occurred when it was put to him that Bollen Mwilima denies that

there was such a conversation.

[57] This witness confirmed that when he left Liselo Village (for Botswana) he was

transported by a person known as Bostas Namita in a motor vehicle up to Malundu

village where he overnighted. He was in the company of four other individuals

namely, Kema Roger, Laskus Sikuzi, Samuel Mafwafwe, and Jameson Mwangala.

The next day one Denver Mushwena transported them from Malundu to the border

where they crossed into Botswana. This witness insisted that he left Liselo village on

34

5 January 1999 when he was confronted with the version of Mafwafwa that he (ie

Mafwafwa) left during November 1998. This witness insisted that Linus Chombo

Chombo (contrary to Mafwafwa) did not drive them from Liselo.

[58] It was submitted by Mr Kauta (in his heads of argument) that this witness

conceded during cross examination that he made a mistake when he said that the

two issues which had been discussed at the Liselo meeting were to secede Caprivi

either by deliberation or by violent means. This witness however did not concede this

mistake39 as submitted. What the witness confirmed was that these two issues had

been discussed at the Liselo meeting. This witness was thereafter confronted what

he had stated in a statement40 in which he had stated that Muyongo was the ‘main

speaker’ at the Liselo meeting and that he (Muyongo) ‘did not specify what was his

mission’

[59] What the mistake meant when he said this in his statement was never

expanded upon or clarified. A statement was put to this witness that because

Muyongo did not specify his mission, consequently there could never have been a

resolution specifying the mission of that meeting. This witness disagreed with that

statement and the matter was left there.

[60] Christopher Lifasi Siboli testified that he became a member of the DTA, (an

alliance of political parties) during the year 1985 and was assigned during the year

1988 to mobilise members of the public to join the DTA. The leader of the United

Democratic Party (UDP) was Mr Mishake Muyongo and this party operated in the

Caprivi area. Muyongo was at that stage also the leader of the DTA which operated

countrywide. This witness testified that he first became aware of the issue of

seceding Caprivi during the 1989 presidential elections, from Muyongo when the

issue of secession “was like a song in his mouth”. During this time at the DTA office

according to this witness he was in the company of Messers Alfred Tawana, Francis

Sizimbo, Thaddeus Ndala, John Simbomo, Geoffrey Mwilima, Chrispin Mutoiwa,

Claudius Puteho, and Mishake Muyongo when the idea of seceding the Caprivi by

violent means was supported by all present. This witness testified that during the

year 1989 the Caprivi Liberation Army was formed and that he was present at that

occasion. Persons present were Thaddeus Ndala (who was the leader) Geoffrey 39 At p 1505 lines 1-5.40 Dated 17 January 2001.

35

Mwilima, Claudius Puteho, John Mawuku, Francis Sizimbo, Conrad Waluwita and

others.

[61] This witness testified about the existence of a body called “Kopano ya tou”,

when translated means “the pride of the elephant” which was a DTA special

intelligence committee existing of ex-SWATF and Koevoet members and was on

standby to fight. The witness testified that he was not a member of “Kapano ya tou”

but that members of “Kapano ya tou” and members of CLA comprised of the same

individuals, the CLA being a “private hidden army.”41 The witness testified that he

had joined the CLA together with other individuals.

[62] This witness pointed out a number of accused persons in Court who

according to him were members of the CLA namely: Messrs Matheus Pungula

(accused 59) a police officer; Victor Masiye Matengu (accused 60), Eugene Ngalaule

(accused 64), Charles Mushakwa (accused 73), Thaddeus Ndala (accused 70)

Richwell Matengu Mukungu (accused 105); Lupalezwi (accused 80); Moses

Mushwena (accused 12), Matheus Sasele (accused 100), John Samboma (accused

54), Chainda (accused 103) Bernard Maungulo (accused 98). This witness testified

that he, himself, as well as the accused persons identified by him in court started the

recruitment of individuals to join the CLA from the year 1991 until 1998 (when a

person was killed and people fled to Botswana) when the recruitment was

temporarily stopped.

[63] The witness testified about two meetings that he had attended during the year

1992. The first meeting was held at the DTA office Katima Mulilo where the idea of

seceding from the rest of Namibia was discussed. This meeting was chaired by

Muyongo. The topic of discussion was the acquisition of firearms from Unita in

Angola. The persons identified to obtain weapons from Angola were Thaddeus

Ndala and John Samboma. Geoffrey Mwilima was present and stated that “we just

have to fight so that the idea of seceding the region can come true.” It was also

resolved to demolish the bridge at Bagani, which separates the Kavango region from

the Caprivi region in order to prevent soldiers form coming to the Caprivi Region. In

respect of Bollen Mwilima (accused 65) this witness pointed him out in court as one

of the mobilisers of the CLA, stating that accused 65 was a teacher during 1992.

41 Page 3650.

36

[64] The second meeting during the year 1992 was convened in order to get

feedback from those persons who went to Angola. The feedback was that weapons

could be procured form Angola and that individuals could go there in order to receive

military training. It was discussed that weapons would be bought from donations

collected as well as the provision of food. This witness testified that Bollen Mwilima

(accused 65) was among those who had donated money for this purpose.

[65] Money would also be procured by requesting donations from members of the

public without informing them the aim of the donations. During cross-examination

the witness testified that persons from whom the money had been collected knew

the purpose for them donating money, namely to secede the Caprivi region. When

confronted with his testimony in chief to the opposite effect this witness explained

that there were two scenarios, namely those people who supported the idea of

secession would be informed the aim of collecting the money, but those who could

not be trusted were not informed of the purpose of the donations. Further during

cross-examination the witness testified that those individuals suspected of not

supporting the idea of seceding the Caprivi did not donate any money.

[66] During cross-examination the witness was not sure about the number of

meetings he had attended, mentioning 12 meetings, 16 meeting and more than 34

meetings. His explanation for this inconsistency was because of effluxion of time.

[67] William Miti Ndana was warned in terms of the provisions of s. 204 of the Act.

He testified that he resided in Masokotwani area and that during the October 1998

he was persuaded by one Thaddeus Muzamai to become part of the group of “92”.

The witness explained that he had been approached twice by Thaddeus Muzamai,

who on the second visit arrived with a motor vehicle and informed him to prepare

himself. During the first visit Muzamai had informed the witness that he, Muzamai,

would be able to secure employment for the witness. The motor vehicle driven by

Muzamai was a Toyota Hilux with registration number 1313 KM, which vehicle

belonged to Oscar Puteho. They left together with other individuals to Ngwezi, in

Katima Mulilo. From here they drove to Sachona (in the bush) were they found a

group of men and there they slept for the night. The next morning Thaddeus Ndala

who was the driver of a Toyota Hilux which vehicle was owned by Bollen Mwilima

37

brought food (bread) to the group. According to him he knew this vehicle. It was

here at Sachona according to the witness that he became aware of the mission of

the group namely to secede the Caprivi region from Namibia as this was mentioned

by the ‘overseer’ of the group John Samboma.

[68] The witness also observed a number of fire-arms. Here they were trained to

use fire-arms. From Sachona the group moved to Linyanti (where the cattle kraal of

Chief Mamili was) and subsequently the group moved to Libyu Libyu where they

stayed for about a week. More people joined the group at this place. It was at this

place Libyiu Libyu one night and during a buffalo stampede through their camp that

some members of the group escaped (about-three in number). A group (of about 4-

5 persons) was then instructed to pursue the escapees. The next morning when the

group of pursuers returned the group was informed that they have completed their

mission and that one of the escapees namely Victor Falali, had been killed. The

group subsequently left Libyu-Libyu and crossed into Botswana without any travel

documents. According to this witness they had been informed by Francis

Mushandikwe and John Samboma that they should inform the Botswana authorities

that they had been pursued by the Namibian Government.

[69] This witness testified that he knew Bolen Mwilima as a teacher at Machita and

that they used to play football together. This witness identified Bollen Mwilima

(accused 65), John Samboma (accused 54) and Thaddeus Ndala (accused 70) in

court. According to this witness they entered Botswana during October 1998; that

the group of 92 were members of the Caprivi Liberation Army (CLA) under the

leadership of Mushake Muyongo; and that they were eventually received at Dukwe

refugee camp.

[70] During cross-examination by Mr Kauta, this witness was referred to two

witness statements, one signed on 23 March 2000 and another signed on 11 March

2003. In the first statement he admitted stating that whilst at Sachona camp at one

stage Thaddeus Ndala brought food to the camp with the motor vehicle of Bollen

Mwilima the registration number of which he could not recall, whilst in the

subsequent statement (about 3 years later) he described the vehicle as a white 2.4

Hilux bakkie with registration number N 807 KM. The witness explained that he

38

subsequently remembered the registration number.42 This witness during cross-

examination confirmed that Bollen Mwilima was a teacher at Machita Combined

School in the Masokotwane area and that he never saw Bollen Mwilima at Sachona

bringing food to them. It was further put to the witness that Bollen Mwilima never

gave that vehicle to Thaddeus Ndala to use and did not know that his vehicle had

ever been to Sachona. This witness denied this could have been the case but could

offer no explanation for his disagreement.

[71] Bernard Bareke Kanzeka was warned in terms of s 204 of Act 51 of 1977.

This witness testified that during the year 1999 he had been employed at Shell

Petroleum Company at Katima mulilo in the Caprivi region as a debt coordinator

from 1991 until September 1998. Prior to this period he was employed in

SWATF/SADF as a chef and at 701 Battalion from 1981 until 1989. He joined the

DTA in the year 1981 (and was still a member of the DTA when he testified during

November 2005). He testified that he attended two meetings during the year 1998 at

the DTA office in Katima Mulilo. The first meeting took place during November. This

meeting was convened and addressed by Geoffrey Mwilima. The witness testified

that he was invited to this meeting by Geoffrrey Mwilima and that it was a secret

meeting. The topic of discussion was the secession of the Caprivi region by ‘way of

fighting,’43 and that weapons had to be procured to this end from Angola. The

attendants of this meeting were informed by Geoffrey Mwilima that they had to go to

Botswana to undergo training in order to liberate the Caprivi region. The attendants

had also been informed that they had to be collected for transporting people to

Botswana. This witness testified that some of the attendants were not ‘happy’ with

the idea. This he inferred from the murmuring he could hear.44

[72] The Court adjourned at the request of this witness due to the fact that he was

ill. He informed the Court that he suffered from high blood pressure and did not take

his medication. This Court adjourned for tea break. When proceedings resumed, Mr

Kauta addressed this Court and informed this Court about a ‘very disturbing trend' as

perceived by him, namely, that during the adjournment the witness was taken to the

office of the prosecutor and the witness statement was provided for him. Mr Kauta

also stated that he was aware that the prosecutors had an album which contained

42 (p 3388).43 (p 5553)44 (p 5559)

39

photographs of all the accused persons and intimated unprofessional conduct by the

prosecutors which had the effect of negating a fair trial. Mr Kauta charged that the

prosecutors had been coaching witnesses. Mr July in reply denied these allegations

and requested an adjournment until the next day in order to address the Court fully

on these allegations. This request was granted but the Court ruled that the

prosecution should continue to lead the witness’ evidence-in-chief.

[73] The witness, Kanzeka then testified that the attendants at the meeting

addressed by Geoffrey Mwilima ‘seemed’ all to have agreed to what had been

conveyed to them. The witness stated that he gained this impression because some

agreed to donate money, whilst others offered their vehicles in order to transport

persons.

[74] When Mr July tried to clarify this apparent contradiction the witness explained

that the attendants agreed to donate money and how people should go to Botswana

in order to liberate Caprivi but that some were not happy with the manner in which

Caprivi was to be ‘cut’ from Namibia namely by the use of force.45

Application for special entry in terms of s. 317

[75] The next day (01 December 2005) after an address by Mr D Small in which he

invited Mr Kauta either to withdraw the allegation of unprofessional conduct by the

prosecutors or to bring an application in terms of s 317 of Act 51 of 1977 (special

entry of irregularity or illegality), Mr Kauta brought such application. Two witnesses

were called in support of the application and two witnesses were called in opposition

to the application. The proceedings concluded on 5 December 2005. This Court

gave its ruling on 08 December 2005 in which a special entry was recorded as

follows:

‘The proceedings in connection with the trial in respect of the accused persons were

irregular to the extent that there having no identification parade held at any stage witnesses

during the course of their testimonies were required to identify accused persons in Court

whilst prior to such identification and during consultation with the prosecutors witnesses

were expected to identify accused persons mentioned in their statements by reference to a

photo album in which not only the photo of accused persons appear but also the identity of

45 (p 5582/5583

40

the persons so appearing on the photographs resulting in the fairness of the trial being

compromised.’

This Court then adjourned the proceedings to 17 January 2006.

[76] It must be stated that this court to the extent had it may have created the

impression by this quotation that it has in fact found that there was an irregularity and

the effect thereof on the fairness of the trial, that such an impression is not correct. It

is clear from the authorities that it is not the task of this Court to determine whether

there had indeed been an irregularity and therefor to decide on the merits and

consequences thereof. This is the function of the Court of Appeal. The purpose of a

special entry for the trial court is to record an irregularity which does not appear form

the record of the proceedings, ie to state in what respect the proceedings are alleged

to have been irregular or illegal. Should the Court of Appeal find that an irregularity

had occurred, it must determine in accordance with the proviso to s 322(1) of Act 51

of 1977 whether or not the irregularity had caused a failure of justice.

[77] Therefore the submissions by counsel appearing on behalf of the accused

persons to the effect that the recording of a special entry during these proceedings

had as a consequence (on the facts of this case) that this Court should disregard all

evidence presented by the State prior to the recording of the special entry, in so far

as it relates to the positive identification of accused persons in court, cannot be

countenanced.46

[78] This Court had stated the following on 11 February 2013 in the application

brought in terms of s 174 of the Act:

‘[68] The provisions of section 317 only introduce the irregularity.

[69] The effect of the special entry made by this Court on 8 December 2005 is

therefore important in this application only to the extent of the factual findings made

by this Court. On the authority of Botha supra any finding by this court that there

indeed had been an irregularity, is thus wrong.

46 See S v Kroon 1997 (1) SACR 525 (SCA) at 530 (b); S v Botha 2006 SACR 105 (SCA) at 110; Hiemstra’s Criminal Procedure (Service Issue 7 May 2014) at 31-29 et seq; Commentary on the Criminal Procedure Act by Du Toit et al (Service 51, 2013) at 31- 30 et seq.

41

[70] In my view therefore those positive identifications of accused person in court

prior to the ruling on 8 December 2005 remain as evidence presented by the State

and should be considered in this application.’

[79] When this Court resumed on 17 January 2006 this witness (Kanzeka) stated

he joined the DTA not in 1981 but on 25 October 1987. He testified that Geoffrey

Mwilima informed them that after the liberation of Caprivi they would get ‘a lot of

money and more jobs’.47 He testified that all present at the meeting agreed with

Geoffrey Mwilima, because they were all laughing. The witness recalled the

following persons to have attended this meeting in addition to Geoffrey Mwilima,

namely: Branson Kwala, Mathews Sasele, Patric Likando, Charles Mainga, Bollen

Mwilima, Chombo Linus, Gibson Luka, Sisuka, Chrispin Samahili, Jojo Bernard

Maungolo, Rex Kapanga, Gabriel Ntelamo, Gabriel Mwilima, and Risto Makapa. The

witness testified that he knew Geoffrey Mwilima as a teacher and one of his

customers at the service station. He knew Bollen Mwilima as a teacher at Kwena

and testified that Bollen Mwilima drove a white Toyota Hilux 1800 with registration

number N 804KM.

[80] This witness testified that he attended a second meeting during December

1998 at the DTA offices at Katima Mulilo chaired by Mishake Muyongo. According to

this witness the following persons were present Geoffrey Mwilima, Branson Kwala,

Likando Patrick, Bollen Mwilima, Rex Kapanga, Mathews Chirinda, Gabriel Ntelamo,

Eugnee Ngalaule, Alfred Siyota and Linus Chombo. The topic of discussion was the

secession of the Caprivi region from the rest of Namibia. At this meeting Mishake

Muyongo addressed them and inter alia stated that people had to go to Botswana in

order to get training on how to fight in order to liberate the Caprivi region.

[81] This witness testified that two persons opposed what was said by Muyongo.

The first one Francis Sizimbo wanted to ask something about fire arms and was told

to sit down. The second one Branson Kwala asked where the fire arms would be

obtained from to which Muyongo answered something to the effect that there were

other people who wanted to go to Botswana.48 This witness testified that Muyongo

had an account at Zambezi Shell Service Station and that fuel was to be used for the

exchange of weapons in Angola. He testified that Muyongo and Mathews Lutambo

47 (p 5929).48 (p 5982)

42

had access to that account. However at one stage Norman Justus had informed

him that he (ie Norman Justus) had authority to fill three drums each holding 210

liters, with fuel and that at at this occasion Mathews Lutambo was present.

[82] This witness was requested to point out all the persons he had mentioned

during his evidence-in-chief and the following persons were pointed out in court:

Gabriel Ntelamo (accused 88), Alex Kapanga (accused 63), Eugene Ngalaule

(accused 64), Muketwa Sizuka (accused 95), Kester Kabunga (accused 63),

Muketwa Sizuka (accused 95), Kester Kabunga (accused 102), Branson Kwala

(accused 99), Bollen Mwilima (accused 65), Mathews Sasele (accused 100), Gibson

Luka (accused 101), Charles Mainga (accused 87), Alfred Siyata (accused 80),

Bernard Maungolo Jojo (accused 98), Charles Mushakwa (accused 73), and

Richwell Matengu (accused 105)

[83] The following accused persons who were in Court were not identified by this

witness, namely; Chrispin Samahili, Norman Justus, Rosco Makapa, Patrick Itwa,

Martin Chainda, and Gabriel Mwilima.

[84] During cross-examination this witness testified that he was collected at his

village on 11 December 1999 and taken to Ngwezi police station but no statement

was taken from him. He was questioned regarding the events on 2 August 1999 and

his statement was only taken on 16 March 2001. He conceded that during the first

meeting there was no discussion about military training in Botswana; that at the

second meeting Muyongo said to the attendants that if they don’t want to be part of

the idea of seceding the Caprivi from Namibia that he (ie Muyongo) would do it on

his own; and that during the second meeting there was also no discussion about

military training.

[85] It was put to this witness that if it is accepted that the testimony of another

State witness is true that Muyongo had fled to Botswana at the end of the month

October 1998 and did not return to Namibia since then, that his testimony that

Muyongo had addressed a meeting during December 1998 could not be possible.

This witness first conceded this to be the case, but immediately thereafter persisted

that Muyongo had addressed a meeting during December 1998. This witness was

requested to mention the names of persons who had attended the second meeting

43

and it was pointed out to him that some of the names mentioned in his evidence-in-

chief were not repeated. This witness persisted that those not mentioned by him

were indeed present at the second meeting but conceded that memory fades over

time.

[86] It was pointed out to the witness that the registration number of the vehicles of

Bollen Mwilima was N807 KM and not N804 KM as testified b this witness. This

witness persisted that it was N 804 KM. It was also put to him that Bollan Mwilima

was teaching at Masida and not at Kwena as testified by this witness in his evidence-

in-chief. This witness nevertheless persisted that Bollen Mwilima taught at Kwena.

This witness agreed that Mathews Lutambo had on various occasions and without

Muyongo being present, used the account of Muyongo in order to obtain fuel. The

witness agreed that Norman Justus is a white man and that he is the only white

accused person in Court. It was pointed to him that he on two occasions failed to

identify Norman Justus in Court as the person to whom he had given diesel when in

the company of Mathews Lutambo.

[87] When it was put to the witness that Charles Mainga, Bollen Mwilima, Justus

Siyato, Justus Sizuka, Alfred Siyata, Linutes Chombo Chombo and Chrispin Samhili

said that they never attended the two meetings referred to, the witness responded by

stating that they were being untruthful.

[88] Roger Silangwe Kepa testified that he resides at Malundu village in the

Caprivi region and that he had deposed to three witness statements. According to

this witness he was approached during the year 1999 by three individuals. Bollen

Mwilima was the first individual who approached him to go to Singalamwe ‘where

there were already others.’ He testified that he was threatened by Bolllen Mwilima to

the effect that since he (ie Kepa) had gone to Dukwe, and should he refuse to go

there (Singalamwe) he would be the first one to be killed, because he was one of

those spreading information that those who were in Dukwe were suffering.

[89] He testified that he went to Dukwe during 1998 and returned during 1999.

The reason why he had gone to Dukwe was that Kasper Machana and Geoffrey

Mwilima approached him on 22 November 1998 at a stage when he was with his

friend, Zulu- boy Mwisepi, on 22 November 1998 and Geoffrey Mwilima told them

44

that since they were doing nothing it would be better to go to Botswana in order to

get a ‘job and education’ and it was for this reason that they left for Botswana.

According to him Geoffrey Mwilima is his father’s cousin. This conversation took

place at a shop by the name of ‘Sunset.’ They were due to leave on 24 November

1998 and were transported in the vehicle of Kasper Machana and departed from

Shell Service station in Katima Mulilo. He had met Kasper Machana at the said

service station in the company of Geoffrey Mwilima. Geoffrey Mwilima remained

behind, and Machana drove to Masokotwane area where he gave them further

directions how to get to Botswana. They (a group of four individuals) were informed

that should they should tell the Botswana authorities that they were the people of

Mishake Muyongo.

[90] The next morning they met soldiers in Botswana and was first taken to

Kasane and thereafter to Dukwe. Nothing of any significance happened in the

refugee camp except that they were once visited by Minister Jerry Ekandjo from

Namibia. He found no employment and no education and stayed for six months in

Dukwe. This witness recalled an incident when a cassette was played in a hall in

which Mishake Muyongo said that they should not be worried, that they were not

there permanently, but were there to prepare themselves to go back and liberate

Caprivi ‘through peaceful means or by fighting.’ He returned to Namibia by means of

voluntary repatriation on 26 May 1999 and returned to Malunda village. During June

1999 he received a call from Bollen Mwilima to visit Katima Mulilo and met Bollen

Mwilima at ‘Sunset’ where the threat referred to (supra) was uttered. According to

this witness he was informed by Bollen Mwilima that the group in the bush at

Singalamwe was preparing ‘to cut Caprivi’ by fighting. He testified that he was

threatened and told Bollen Mwilima that he (Bollen Mwilima) should pick him up the

next day.

[91] The same day after he had parted with Bollen Mwilima he met Victor

Makando and Gabriel Mwilima and was given a lift home by Gabriel Mwilima. He

testified that Victor Makando used to be his teacher. On their way home Makando

wanted to know why he had returned form Dukwe and threatened him exactly the

same manner that Bollen Mwilima did earlier and he was told to go to Singalamwe.

There was no conversation between himself and Gabriel Mwilima. The next day he

left for Oshakati and only returned during the school holiday in August 1999. He was

45

not in Katima Mulilo on 2 August 1999. When he returned he found that there was a

state of emergency. His first statement he gave on 15 June 2000 when he was

approached by the police at the village. The police wanted to know from him whether

he knew what had happened in Katima Mulilo in August 1999. The second statement

he gave on 3 August 2000 because of the fact that he had realized that he had made

a mistake in the first statement to the effect that it was recorded that he had met

‘those people’ after he had gone to Oshakati. The statement was corrected at his

instance.

[92] The third statement was given on 28 February 2003 in order to rectify

mistakes in the first statement. This witness was given the opportunity to identify

persons mentioned by him but responded that he would not be able to identify them

due to the time lapse. This witness testified on 08 March 2006. During cross-

examination by Mr Kauta the witness testified that he had never been a rebel and

had never been part of a group that wanted to secede the Caprivi-region; that Bollen

Mwilima was his cousin; that the name of Bollen Mwilima’s father is Gideon Mwilima

and the name of Gideon Mwilima’s father was Joel Mwilima; that during the year

1999 he would not have made a mistake in respect of the identities of Bollen

Mwilima, Geoffrey Mwilima or Gabriel Mwilima; that both Victor Makando and Bollen

Mwilima wanted to recruit him in order to join people at a base in Singalanmwe; that

he did not know what the purpose was of going to Singalamwe but that he had been

informed that those in Singalamwe were soldiers.

[93] This witness during cross-examination and with reference this first statement

conceded that he referred in the statement to Victor Matengu and not Victor

Makando. The witness stated that what appeared in the statement was a mistake.

The witnesses conceded that he had stated in his first statement that it was Vicor

Matengu and Gabriel Mwilima who had threatened him and what Bollen Mwilima did

was to incite him to go to the bush in order to ‘to join others’. The witness conceded

that he did not mention in the statement that Bollen Mwilima had told him to go to

Singalamwe. The witness conceded that he did not mention that Bollen Mwilima had

threatened him. The witness testified that Victor Makando was his teacher. It was put

to the witness that Victor Makando will say that he taught this witness and that he

knows him. This was confirmed by the witness.

46

[94] In respect of the second statement the witness conceded that he did not

mention that he made a mistake in this first statement when he referred to Victor

Matengu instead of Victor Makando. This witness further testified that it was a

mistake in his first statement in which the month August 1999 was mentioned when

he met Gabriel Mwilima, Victor Makando and Bollen Mwilima and that he had in fact

met them during June 1999.

[95] Ignatius Buchane Buchane testified that on 27 January 1999 whilst at his

home in Rirero village (Gwena) he was approached by Bollen Mwilima who informed

him about people fleeing to Botswana. According to this witness Bollen Mwilima

encouraged him to flee to Botswana for education or to ‘join the army’.49 He knew

Bollen Mwilima since he (ie Mwilima) was his teacher during the year 1995 at

Masida. He refused the request. On 28 January 1999 Bollen Mwilima returned and

repeated his request. Bollen Mwilima was alone at this stage and arrived there in a

white Hilux motor vehicle. The witness responded by telling Bollen Mwilima that he

was still thinking about it. On 1 February 1999 Bollen Mwilima returned to him and

the witness agreed to go in order to liberate the Caprivi region. They arranged that

he would leave on 3rd of February 1999. On 3 February 1999 Bollen Mwilima

transported himself and his sister to a place called Mwambezi, at a small river, and

gave them instructions to go to the Khuta at Sadan. Bollen Mwilima informed them

that at Sadan people would take them to Kasane. Here they met a group of 22

individuals form Lynyanti and they eventually arrived at Dukwe. He returned to

Namibia during July 199 by way of voluntary repatriation.

[96] During cross-examination this witness testified that his understanding of how

Caprivi was to be liberated was to ‘discuss the issue on the table’, ‘without any

fighting’, and that the police officer who took his statement recorded the ‘issue of the

army’. This police officer allegedly said that ‘there is no country which can be

liberated unless you use the army’. It was put to this witness that he went to

Botswana not because of any conversation he had with Bollen Mwilima50 but

because he was a frustrated youngster who had no employment. This was denied.

This witness testified that he went to Botswana for purposes of education.

49 P 24617.50 P 24652.

47

[97] Innocent Falali Mahoto testified that towards the end of October 1998 the

former chief Boniface Mamili deserted his community and went to Botswana. On 2

November 1998 at a meeting it was resolved that a committee of royal family

members must be formed to coordinate between the royal family members and the

tribal authority, (situated at Linyanti). He was nominated as chairperson of a

coordinating committee and was also the chairperson of the inauguration committee.

The tradition according to this witness, was that should a chief desert his community

he had to be replaced with another one from the ranks of the royal family.

[98] This witness testified that he went on two or three occasions to the traditional

authority to inform them that the royal family had considered George Simasiku as the

person to succeed the former chief. This was not accepted because the old ‘chief

was to come back’. Members of the Mafwe royal family decided to go ahead with the

inauguration and the Government as well as the tribal authority was informed. The

Minister gave approval to proceed with the inauguration. The tribal authority opposed

this. During the inauguration on 18 April 1999 he observed three men grabbed a

police officer, warrant officer Mokena, scuffled with him and asked what he wanted

there. The police officer was from the Subiya tribe. This witness saw them ‘stripping’

the shirt of the police officer. The three men were identified as Bollen Mwilima, Linus

Chombo and David Kavo. This witness testified that Bollen Mwilima is his nephew

and resided at Kanono village. This witness testified that there was a group of about

50 persons who had opposed the inauguration of the new chief. Amongst those who

had opposed the inauguration of the new chief were Bernard Jojo, Alfred Siyata,

Bollen Mwilima, Linus Chombo, Chrispin Samahili, Simone Molisious Richard

Mukawa, Luka Gibson and Matheus Salele. He testified that he knew Simone

Molisious as Molisious was one of his students, and that Linus Chombo is his cousin.

This witness identified Linus Chombo and Mathew Sesele in court and recognized

Gibson Luka. The new chief was eventually inaugurated at another nearby village,

Chinchimane.

[99] This witness testified that at one stage prior to the inauguration he saw Bollen

Mwilima and Matheus Simuzu having a conversation at ‘Sunset’ and overheard

Bollen Mwilima telling Matheus: ‘You are the people who are insisting to inaugurate

the chief and you are disturbing our plans. So if you continue I will shoot you and

run to Botswana’. When he said that he started laughing. He testified that he knew

48

Bollen Mwilima very well and that Bollen is his nephew. Linus Chombo is his cousin

and was residing at Linyanti. During cross-examination the witness was referred to

his statement dated 24 September 2001 and it was pointed out that it was not

mentioned that warrant officer Mukena was ‘grabbed’. This witness pointed out that

the word ‘confronted’ was used in the statement and that it was ‘a question of a

word’. This witness testified that the shirt was grabbed on each side and pulled with

the result that the buttons came off.

[100] It was further pointed out to this witness that in three witness statements by a

warrant officer Richard Simushe Mukena no mention was made that on 18 April

1998 such an incident had occurred. This witness confirmed that he had observed

such an incident and that it was for warrant officer Mukena to explain why it was not

mentioned in any statement. It was also put to this witness that a time when he had

initially arrived in the morning for the inauguration that Linus Chombo was not there

since he (ie Linus Chombo) had only arrived there at 12h00. This was denied. It was

never disputed during cross-examination that Bollen Mwilima was one of the three

individuals who was there and who had grabbed the police officer as described by

this witness.

[101] Brian Lisepo Lubeile on 15 October 2007 testified that he was an junior

induna during April 1991 and resided at Chinchimane, but sat as induna at Linyanti

Khuta (traditional court). The main Khuta sat at Chinchimane. He testified that on 18

April 1999 the inauguration of the new chief was scheduled for 09h00. When he

arrived at the place of inauguration he observed an individual called Kabo who told

him that there would be no inauguration because they were waiting for their Chief

Boniface Bebi who was in Botswana. In Kabo’s company was Bollen Mwilima, Linus

Chombo and Francis Malambo. A police officer Mokena subsequently arrived and

these four individuals went into the courtyard of the Chief making some noise and

said that they were going to cut the nation (Caprivi) so that Boniface Mamili could

come and rule instead of George Simasiku, once Caprivi has been cut.51 The police

officers tried to get them out of the courtyard. Amongst the crowd were Geoffrey

Mwilima, Harrison Kwala, Kwala Branson and Gibson Luka. Linus Chombo was

carrying a stick and wanted to hit him (the witness). There were two groups of

people, one group in favour of the inauguration and the other group opposing the

51(p 19229/19230)

49

inauguration. This witness identified Bollen Mwilima (accused 65) as one of those

who had opposed the inauguration of the new chief52 and also identified Geoffrey

Mwilima (accused 68), Molicious Simone (accused 85), Linus Chombe (accused 82).

[102] During cross-examination this witness was again asked to identify Bollen

Mwilima and identified someone else53. The witness during cross-examination

testified that on 18 April 1999 he arrived at 06h45 at the courtyard and only saw the

witness Mahoto around 13h00 ‘while the chief was already at his position’; that

people like Bollen ran towards warrant officer Mokena and wanted to assault him,

but did not see that the officer had been assaulted. It was further put to the witness

that the person whom he had pointed out as Linus Chombo was indeed another

accused person. This witness denied it.

[103] Hendrik Naftali Shamukau testified that during January 1999 he was in a

shopping centre in Katima Mulilo when he met Bollen Mwilima. He knew Bollen

Mwilima as a teacher at Masida from Masokwotani area. According to this witness

Bollen Mwilima informed him that he should go to Botswana where others were in

order to get employment as he (ie the witness) was doing nothing. He (the witness)

was unemployed at that stage.

[104] This witness testified that he originated for Katongo village. He informed

Bollen Mwilima that he was interested and was willing to go to Botswana. Bollen

Mwilima told the witness that he would take the witness. On 4 January 1999 at

09h00 he together with other persons (they were five in number), boarded a

motorvehicle a white Hilux with registration number N 807 KM. Bollen Mwilima was

the driver and they left for Botswana. At Ngoma border post in the afternoon Bollen

Mwilima told them to lay down and they crossed without being detected. They

disembarked at Kasane in Botswana. They were informed by Bollen Mwilima that a

vehicle would take them to Dukwe. A vehicle from the Botswana Defence Force

(BDF) took them to Dukwe. He stayed for five months in Dukwa and returned to

Namibia through voluntary repatriation. This witness was unable to identify Bollen

Mwilima in court.

52 P 1924053 P 19266/7

50

[105] During cross-examination this witness was referred to his witness statement

where it appears that whilst at home at Machita he was influenced by Fried Kasungo

of Masokotwane area to leave for Botswana and join others to secede Caprivi from

Namibia militarily. The witness denied that he had said this to detective warrant

officer Evan Simasiku during 1999 when he deposed to his statement. This witness

also denied having said to the police officer that Bollen Mwilima had said to him that

he would receive training in Botswana.

[106] It was further put to this witness that Ngoma border post is an official border

post between Namibia and Botswana and the procedure is that a vehicle would get a

gate pass which indicates the number of individuals in that vehicle and that a

motorvehicle with registration number N 807 KM never passed through Ngoma

borderpost on 4 January 1999. The witness indicated that he was not sure about

this.

[107] Bollen Mwilima was arrested on 04 August 1999 in Katima Mulilo by the

regional commander in Caprivi of the Namibia Police, Chief Inspector Hieronymous

Bartholomeus Goraseb.

[108] Bollen Mwilima Mwilima testified that prior to his arrest he had been employed

as a teacher at Machita Combined School, 40 km south of Katima Mulilo from 1995.

From 1992 until 1994 he studied at the University of Namibia in Windhoek. He

denied that during 1992 he had been a mobiliser and recruiter of persons to join a

group to secede Caprivi from Namibia by violence, and denied that he had donated

money during 1992 to be used to acquire weapons. He testified that he knows Oscar

Mwisepi as a ‘fourth cousin’ and denied having discussed with Mwisepi any issue of

secession. He denied ever visiting Dukwe refugee camp and explained that when he

returned from holiday he passed via Francis Town and Dukwe. According to him

pedestrians crossed the road in front of them and he asked the driver of the

motorvehicle, Mr Gabriel Mwilima, to reduce speed. A motorvehicle of the Botswana

Police Fore was next to the road. When they stopped their vehicle people flocked to

their vehicle because these people from the registration number of their vehicle had

recognized that they originated from Katima Mulilo.

51

[109] A police officer approached them and asked: ‘who gave you permission to

speak to these people?’ They were then taken for questioning inside what he

assumed to be Dukwe refugee camp by the police. After questioning they were

taken to a town called Nata where they were released by the police and returned

home. Bollen Mwilima testified that he knows Bernard Kanzeka. He denies that he

had attended a meeting addressed by Geoffrey Mwilima during November 1998 at

the DTA offices in Katima Mulilo. He stated that he was not a member of any

political party. He testified that Geoffrey Mwilima is his uncle and Mishake Muyongo

is his father’s cousin. He came to know Bernard Kanzeka as a petrol attendant at

Zambezi Shell service station and confirmed that he had owned a motorvehicle (a

bakkie) with registration number N 807 KM and denied that he had owned a

motorvehicle with registration number N 801 KM. The witness denied teaching in

Katima Mulilo.

[110] The witness also denied that he had attended a meeting during December

1998 addressed by Mishake Muyongo at the DTA offices. The witness denied that

he had availed his motorvehicle in order to transport Mishake Muyongo to Botswana.

The witness confirmed that he knows Thaddeus Ndala since Ndala had worked a a

furniture shop in Katima Mulilo and could recall that Ndala once borrowed his

motorvehicle since he (ie Ndala) had bought furniture which he (Ndala) wanted to

transport. The witness confirmed that he had been at Chinchimani on 18 April 1999

and was part of a group opposing the inauguration of the new chief because certain

procedures, according to their culture, had not been followed, but denied having

assaulted a police officer.

[111] This witness denied knowing the state witnesses, Roger Kepa, Ignatius

Buchani and Innocent Mahoto. He testified that he was arrested on 04 August 1999

in Katima Mulilo by Chief Inspector Goraseb who had been in the company of

Sergeant Evans Simasiku but was not informed of the reason for his arrest but only

informed at a later stage.

[112] The witness testified that after his arrest he was tortured (‘sjamboked’) and

humiliated at the police station by Patric Liswani and Aupa on instructions of Chief

Inspector John Lifasi. He testified that he was questioned by (late) sergeant Robert

Chizabulyo about the use of his motor vehicle and his opposition at the inauguration

52

of the new chief. He testified that he never attended DTA meetings from 1997 to

1999 and prior to 2 August 1999 did not know about a ‘movement’ to secede the

Caprivi from the rest of Namibia. Furthermore during this period (1997-1999) he has

never heard in the media (electronic or printed) about this movement.

[113] During cross-examination by counsel, Mr Muluti, this witness denied having

attended a meeting with John Samboma where they had donated money in order to

acquire weapons from Angola. He testified that Mishake Muyongo owned two motor

vehicles and that it would not have made any sense for him to have offered his

vehicle in order to have Muyongo transported to Botswana.

[114] During cross-examination by Mr January, this witness in reply to a question

whether at any stage whilst teaching at Machita he had become aware of the

secessionist issue, stated that he had become aware of it ‘when the 92 crossed into

Botswana’, through the radio and through the newspaper. The witness testified that

he never knew the reason why the 92 had crossed into Botswana and only heard

about the reason in Court, namely that it was to secede the Caprivi from Namibia.

[115] He testified that during November 1998 at a stage when he was in Windhoek

for ‘marking’ he read in a newspaper that the San people in Western Caprivi had

also fled to Botswana54. According to him when he returned to Katima Mulilo he

realised that big numbers of Mafwe people were also crossing into Botswana. He

testified that during October 1988 he was at school at Machita.

[116] The witness stated that he is related to Muyongo as well as to Geoffrey

Mwilima and that both of them were politicians. He however denied having any

‘political discussion’ with them. The witness testified that during the period 1995 until

1998 he never attended any meeting and testified that he regarded the inauguration

of a chief as a cultural or traditional event, not a political one.

[117] During cross-examination he testified that he was aware of meetings being

held by different political parties in the Caprivi Region by Swapo, DTA, NUDO, COD

but has never heard that someone had announced a meeting of the UDP to be held

54 P 36611

53

in town. The witness testified that he first heard of the UDP when he was a student

during the 1980’s when people were saying ‘UDP, UDP’.

[118] He acknowledged that Oscar Mwisepi is related to him (‘a fourth cousin’) and

never experienced any problems in the past with Mwisepi. He denied that Mwisepi

had ever testified that he (ie Bollen Mwilima) had attended meetings and denied that

he himself attended any meetings during the period 1995 until 1998.

[119] He testified that he came to know Thaddeus Ndala at a stage when Ndala had

been employed at a furniture shop as a salesman where he (Mwilima) had

purchased furniture and where he regularly went to make payments directly to the

furniture shop. He denied that Thaddeus Ndala was a friend of him and described

their relationship as a business one.

[120] He testified he once had lend his vehicle to Thaddeus Ndala at a sports field

whilst playing soccer and that Ndala had returned his vehicle a few minutes after the

soccer match. He testified that he could not estimate the exact time the vehicle had

been used by Ndala.

[121] This witness, to a question whether he usually gave his motor vehicle ‘to

anybody to use’ answered in the affirmative. To a further question he testified that

he would not lend his vehicle to someone unknown to him. The witness testified that

Ndala needed the vehicle since Ndala had bought furniture which he wanted to

transport ‘to his place’. The witness testified that he would be unable to have

determined the distance Ndala had travelled because his vehicle was unable to

‘calculate’ the distance travelled. He testified that he wanted to have a (business)

relationship with Ndala in order to get a discount should he have considered further

purchases in future.

[122] It was put to this witness that counsel, Mr Kauta, when he cross-examined a

state witness (William Miti Ndana) had put it to that witness55 that Bollen Mwilima’s

version is that he has never lend his vehicle to Thaddues Ndala, and even if it was

the vehicle belonging to Bollen Mwilima (seen by Ndana at Sachona rebel camp)

that he had never given his vehicle to Thaddues Ndala to use.56 Bollen Mwilima 55 P 3395.56 P 3396.

54

replied that that was a version which counsel himself put to the witness but that his

instruction to counsel was that he had never given his vehicle to Thaddeus Ndala to

take food to Sadona Rebel Base. It was submitted by counsel on behalf of the State

that this constitutes a contradiction. When asked for his comment that if there is

documentary evidence which states that he was a member of the UDP, this witness

replied that such documents would be ‘faked ones’57 The witness testified that he did

not know when Mishake Muyongo fled to Botswana, was never involved in

transporting Muyongo ‘to any place’, did not know why Muyongo had left the Caprivi

region or when he so left the region.

[123] When asked for his comment that if there is documentary evidence indicating

that the witness was involved when he (Muyongo) left for Botswana, the witness

replied that there ‘is no such documentary …’

[124] Exhibit EGL 1 (a diary of Moses Limbo Mushwena, accused no. 14, and who

had during the year 2007 passed away) reflects an inscription on 27 October 1998 to

the effect that the previous night Victor Falali was shot and killed at Linyanti; that a

Mr Puteho came to inform them about it and that they decided to inform Muyongo

that ‘time has come we should flee the country’. Bollen Mwilima is mentioned as one

in the group of persons who went to Muyongo to convey this information to him.

[125] Exhibit EFG 7 (a cash book) of one Ovens Ndala and co-conspirator (at p 58)

reflects that Bollen Mwilima was a member of the UDP and owner of a white Hilux

motor vehicle with registration number N 807 KM and that this vehicle was borrowed

from Bollen Mwilima by one Kwala Branson to transport Muyongo and other UDP

members as well as members of the CLA to Botswana. Branson Kwala was accused

no. 99 in this trial.

[126] During cross-examination the accused testified that Branson Kwala was

married to his (ie Mwilima’s aunt) and that Kwala had borrowed his vehicle from him

on 27/28 October 1998 since his (Kwala’s) mother-in-law had passed away. The

accused denied, as a fact, that his vehicle had been used in order to transport

Muyongo to Botswana and stated that he only became aware that Muyongo had left

57 P 36627.

55

Namibia when it was announced over the radio that he had left and joined ‘the 92’ in

Botswana.

[127] It was submitted on behalf of the State that the accused first having feigned

ignorance in respect of when he had lent his vehicle to Kwala and subsequently

agreeing on the dates as suggested to him, is an example to how the accused

tailored his evidence.

[128] The accused person conceded that he could not as a fact58 state that

Muyongo had left with his (ie Muyongo’s own vehicle), but there is nothing in the

record (during his testimony) which supports his contention that his vehicle has as a

fact not been used to transport Muyongo to Botswana.

[129] During cross-examination the accused person explained that he went to

Botswana accompanied by Mr Gabriel Mwilima (his cousin) in order to purchase

corrugated iron sheets because he was in process of constructing a ‘permanent

house at the village’. Prior to his journey to Botswana he had done a feasibility study

by travelling to Windhoek (Jambo in the Northern Industrial Area). Prices were

compared and he ascertained that Botswana offered the cheapest price for what was

referred to as ‘zincs’. He could obtain a sheet of zinc for N$ 4.10 less than in

Windhoek. Gabriel Mwilima had also been involved in the construction of a house

and he was informed by Gabriel Mwilima that he was in need of a bath tub for his

house. During cross-examination the question was put to the accused by Mr July

whether it was a coincidence that at the time when people were flocking to Botswana

he had to purchase his building material.

[130] It was submitted by Mr July in argument that if one has regard to the

contention that the purpose of the journey to Botswana was in order to purchase

building material (sheets of corrugated iron and a bath tub) whilst having as their

mode of transport a sedan motor vehicle and subsequently returning with no such

building material, that, he claimed purpose of the journey to Botswana was just a

ruse and that the probabilities favour the conclusion, as testified by Oscar Mwisepi,

that they went to Dukwe in order to inform and to relay information and assistance to

those refugees in Dukwe who originated from the Caprivi. This submission in my

58 P 36630.

56

view in not without merit. It is in my view highly unlikely especially in view of the fact

that the accused must have travelled to Windhoek (during his feasibility study) at

great expense from Katima Mulilo, that in the first instance a sedan vehicle would

have been used to travel to Botswana, and secondly, that they would have returned

with no building material from Botswana (from Kasane, Francis Town and

Gaborone). The explanation for their presence in Dukwe in my view is unconvincing.

[131] In exhibit EGO 2 (the translated pages 4 and 5) the accused Bollen Mwilima

was referred to as having rendered a great deal of assistance (together with one

Mushwena) to people who were in the bush.

[132] The accused in his evidence-in-chief 59 testified that before 2 August 1999 he

did not know about a movement afoot in the Caprivi to secede the region from the

rest of Namibia. This testimony in in direct conflict with the documentary evidence

referred to (supra) namely that he was one of a group individuals who went to warn

Muyongo to leave the country and that his vehicle was used for this purpose.

[133] The defence of the accused is a bare denial and he explained that the

witnesses who had implicated him (he mentioned Oscar Mwisepi, Ndana Miti,

Bernard Kanzeka and Christopher Siboli60) had done so only because he was known

to them.

[134] This Court is aware that the maxim falsum in uno, falsum in omnibus do no

not apply to our law of evidence61. In S v Oosthuizen62 in this regard the following

was said:

‘All that can be said is that where a witness has been shown to be deliberately lying

on one point, the trier of fact may (not must) conclude that his evidence on another point

cannot safely be relied upon … . The circumstances may be such that there if no room for

honest mistake in regard to a particular piece of evidence: either it is true or it has been

deliberately fabricated. In such a case the fact that the witness has been guilty of deliberate

falsehood in order parts of his evidence is relevant to who that he may have fabricated the

piece of evidence in question. But in this context the fact that he has been honestly

59 P 36581.60 P 36650.61 R v Gumede 1949 (3) SA 749 (A).62 1982 (3) SA 571 (T).

57

mistaken in other parts of his evidence is irrelevant, because the fact that his evidence in

regard to one point is honestly mistaken cannot support an inference that his evidence on

another point is a deliberate fabrication.’

[135] This Court is alive to the basic principles relating to the evidence of an

accomplice witness as was stated in S v Masuku63 at 376 by Leon J:

‘(1) Caution in dealing with the evidence of an accomplice in imperative … (2) an

accomplice is a witness with a possible motive to tell lies about an innocent accused; for

example, to shield some other person, or to obtain immunity for himself (3) corroboration, not

implicating the accused but merely in regard to the details of the crime, not implicating the

accused, is not conclusive of the truthfulness of the accomplice. The very fact of his being

an accomplice enables him to furnish the court with details of the crime which is apt to give

the court the impression that he is in all respects a satisfactory witness, or, as had been

described “to convince the unwary that his lies are the truth”. (4) Accordingly, to satisfy the

cautionary rule, if corroboration is ought it must be corroboration directly implicating the

accused in the commission of the offence. (5) Such corroboration may, however, be found

in the evidence of accomplice provided that the latter is a reliable witness. (6) Where there

is no such corroboration, there must be some other assurance that the evidence of the

accomplice is reliable. (7) That assurance may be found where the accused is a lying

witness, or where he does not give evidence. (8) The risk of false incrimination will also, I

think, be reduced in a proper case where the accomplice is a friend of the accused. (9) In

the absence of any of the aforementioned features, it is competent for a court to convict on

the evidence of an accomplice only where the court understands the peculiar danger

inherent in accomplice evidence and appreciates that acceptance of the accomplice and

rejection of the accused is only permissible where the merits of the accomplice as a witness,

and the demerits of the accused as a witness are beyond question. (10) Where the

corroboration of an accomplice is offered by the evidence of another accomplice, the latter

remains an accomplice and the court is not relieved of its duty to examine his evidence with

caution. He, like the other accomplice, still has a possible motive to tell lies. He, like the

accomplice, because he is an accomplice, is in a position to furnish the court with details of

the crime which is apt to give the court, if unwary, the impression that he is a satisfactory

witness in all respects.’

[136] Mr Kauta who appears on behalf of accused no. 65 and eight others in his

address criticised the prosecution in respect of the manner in which they presented

63 1969 (2) SA 375 (N.P.D).

58

their submissions in court with reference to S v van der Westhuizen64 where Cloete

JA said that it is not the function of a prosecutor to disinterestingly place a

hotchpotch of contradictory evidence before a court and then leave the Court to

make of it what it is. On the contrary it is the obligation of a prosecutor firmly but

fairly and dispassionately to construct and present a case from what appears to be

credible evidence and to challenge the evidence of the accused and other defence

witnesses with a view to discrediting such evidence for the very purpose of obtaining

a conviction.

[137] Mr Kauta submitted that this was not done by the prosecution. Furthermore

the issue of credibility was not addressed it was submitted. It was further submitted

that it was a wrong approach to rely on my judgment in the application for a

discharge in terms of s. 174 of Act 51 of 1977 since those finding were prima facie

and that this Court did not express itself on the credibility of witnesses at that stage.

[138] In respect of the special entry recorded in terms of s. 317 of Act 51 of 1977 Mr

Kauta submitted with reference to S v Shikunga and Another65 that this Court must

assess the evidence of witnesses who had testified prior to 8 December 2005 and

determine whether there is any other evidence unaffected by the irregularity that

finds support for a guilty verdict. In this regard it was submitted that after 8

December 2005 identification of accused persons became an impossibility. It was

further submitted that the question to be answered is the following: Assuming there

was no irregularity found but there was cogent evidence that state witnesses only

identified accused persons on trial because they were shown an album, it cannot be

argued that this Court should ignore that evidence.

[139] Mr Kauta submitted that his primary argument why all nine of his clients must

be found not guilty relates to the issue of further particulars. It was submitted that

where the State relies on common purpose or conspiracy the accused persons are

entitled to particulars upon which the State relies for it’s allegations that each one of

them was a party to a conspiracy; that further particulars provided by the State

become part of the charges and must be proved by the State; that a Court may not

rely on another form of conduct not mentioned in the further particulars on which to

64 2011 (2) SACR (SCA).65 1997 NR 156 (SC).

59

found a conviction, and that the State has not abandoned the further particulars

provided.

[140] In respect of Bollen Mwilima (accused 65) Mr Kauta submitted that Mr July

submitted that when Bollen Mwilima was in Dukwe he associated himself with the

secession issue and that this Court must from this infer an overt act. This, it was

submitted, was never the State’s case and the accused has never been asked to

answer that. With reference to the further particulars provided by the State, Mr

Kauta submitted that the State’s case was on this point that the accused regularly

visited rebels who had been held at Dukwe refugee camp and during these visits

provided the rebels with money and information about the activities at Namibian

security personnel in the Caprivi Region.

[141] It was submitted that there is not evidence to support these further particulars.

Mr Kauta submitted that the state witness Mwisepi never had a discussion with

Bollen Mwilima but that a person, one Boster Nester, who was not called as a

witness had a conversation with Bollen Mwilima. The record however does not bear

out this contention. It is clear that Mwisepi testified, during cross-examination, that

one Bosman Ntesa ‘also’66 had a conversation with them in his presence.

[142] Mr Kauta further submitted that whilst one of the further particulars states that

accused 65 provided food to the rebels whilst they had been in the bush, the

evidence presented by the State on this point does not support the further

particulars. This submission is correct, on the contrary, with reference to the

testimony of a state witness, Bollen Mwilima was not in the vehicle driven by

Thaddeus Ndala on that occasion.

[143] One of the further particulars, provided by the State, was that the accused 65

provided the rebels at Sachona rebel base with firearms in order to secede Caprivi

from Namibia by military means. Mr Kauta correctly submitted that no evidence was

presented to support this allegation.

[144] Mr Kauta further submitted that no evidence was presented that the accused

transported any rebel to either Botswana or Zambia as alleged in the further

66 P 1521

60

particulars. The legal principle relating to further particulars, as submitted by Mr

Kauta, were correctly stated. One should however keep in mind that further

particulars are supplementary and do not replace the allegations in the charge

sheet.67

[145] The State provided approximately fifteen allegations in the further particulars

on the basis of which accused 65 allegedly committed the crime of high treason. Mr

Kauta correctly submitted that there is no evidence to support some of those further

particulars. In my view the question which needs to be answered is whether in such

an instance (i.e. failure to prove some further particulars) a court should acquit an

accused person, in spite of evidence supporting other further particulars? One of the

further particulars provided was that accused 65 was a supporter of the Caprivi

Liberation Army.

[146] There is documentary evidence (exhibit EGL and EGF) which support this

allegation and which in my view constitute executive statements. This in turn

negatively reflects upon the credibility of the accused where he denied knowledge of

such evidence.

[147] The answer in my view to the question posed should, as a matter of common

sense, be answered in the negative. I was not referred to any authority which states

the contrary.

[148] With reference to two diaries, exhibits EGL and EGF, Mr Kauta submitted in

the first instance contain no executive statement but ‘at best’ narrative statements,

and secondly, the accused 65 was never cross-examined on those exhibits at all.

Regarding this second point, this Court was referred to Small v Smith68 where

Claasen J stated that it is elementary and standard practice for a party to put to each

opposing witness so must of its own case or defence as concerns that witness and if

need be to inform him, if he has not given notice thereof, that other witnesses will

contradict him so as to give him fair warning and an opportunity of explaining the

contradiction and defending his own character. That it is grossly unfair and improper

to let a witness’s evidence go unchallenged in cross-examination and afterwards

argue that he must be disbelieved. 67 R v Van Zyl 1958 (2) SA 190 (O) at 193H-194A.68 1954 (3) SA 434 (SWA)

61

[149] It is correct that accused 65 was not confronted with these specific exhibits

(EGL and EGF) but was referred to documentary evidence containing certain

information and was given the opportunity to respond thereto.

[150] Oscar Mwisepi’s evidence as corroborated by documentary evidence, and in

view of the untruthfulness of the evidence of Bollen Mwilima in respect of the

purpose of his visit to Dukwe, and that his evidence distancing himself from any

support given in an effort to secede the Caprivi from the rest of Namibia, is rejected.

Alfred Lupalezi Siyata (accused no. 80)

[151] The accused was pointed out by Christopher Siboli as being a member of the

CLA and identified as a person who had recruited individuals to join the CLA. He

was also identified as a member of Kopana ya tou and was present at a meeting

called by Mishake Muyongo and where each one present was in favour of seceding

Caprivi from the rest of Namibia by force. Bernard Kanzeka identified the accused in

court as having attended a secret meeting in the year 1998 at the DTA offices in

Katima Mulilo.

[152] Lascan Sikosi testified that the accused was with one Francis Mubita

(accused no. 110) when he (ie the witness) was allegedly informed by Mubita that he

should go to Angola in order to receive training and to come back to fight Namibia.

According to this witness the reaction of the accused, when Mubita, had spoken

these words, was to nod his head in agreement. This witness testified that the

accused and one Chrispin Samahili were both in Botswana and that the accused

was a relative of his from Linyanti but failed to identify the accused in court.

[153] During cross-examination the witness was confronted with the evidence of

state witness Dascan Nyoka who was with the witness when they met Francis

Mubita, but that Dacan Nyoka never testified that the accused and Chrispin Samahili

were present at that stage. This witness persisted with his version that the accused

was present at that stage. He testified he knew the accused since the accused used

to work at ‘Government Security’.

62

[154] This witness Nyoka mentioned the names of three other individuals who had

been present at the time they encountered Francis Mubita. The evidence of Sikosi is

contradicted by the evidence of Nyoka on the question whether the accused had

been present at the relevant time. In view of this contradiction this Court cannot

accept the evidence of the witness Sikosi on this point.

[155] The accused testified that he was arrested on 4 August 1999 by warrant

officer Richard Mukena at Bank Windhoek in Katima Mulilo. He was taken to the

police station where he met sergeant Patrick Liswani and constable Vermus Haipa.

He was interrogated but no statement was taken from him at that stage. He was

subsequently, after having denied his involvement in the attack on 2 August 1999,

assaulted by the police officers with a rubber sjambok. In court he identified

photographs (exhibits EUO 1 and EUO 2) of himself depicting scars on his back. He

testified that photographs had been taken of himself by one Andrew Corbett who had

at that stage been attached to the Legal Assistance Centre.

[156] He testified that shortly before his arrest he was employed at the Ministry of

Works, Transport and Communication as a security officer. He further testified that

prior to his employment in the Ministry he had been employed in SWATF 701

Battalion in 1987 as infantry man; that after the SWATF was demobilised 701

Battalion became known as Kopana Ya Tou in order to distinguish it from the civilian

population; that he knows Bernard Kanzeka since they worked together in

Otjiwarongo at Training Wing Sector 10 and they were also deployed in Grootfontein;

that Bernard Kanzeka was indeed a close friend of his; he denied having attended a

secret meeting at the DTA offices during November 1998 in Katima Mulilo (as

testified by Bernard Kanzeka); denied that he attended any meeting during

November-December 1998 at the DTA offices, addressed by Geoffrey Mwilima

where the topic of secession was discussed; he conceded that he was a member of

the DTA, but only an ordinary member without any portfolio; that during the years

1997 till 1999 he did not attend any meeting of the DTA; that the last time he

attended a DTA meeting was in 1992 when Felix Mukasa had won the constituency

of Katima Mulilo; he denied that he attended a meeting in December 1998 which was

addressed by Mishake Muyongo; that he had known Mishake Muyongo as a

parliamentarian and president of the DTA; that he could not remember when last he

attended a meeting addressed by Muyongo but only knew when Muyongo was

63

discharged from the DTA and Kaura and his delegation went to Katima Mulilo in

August 1999 when he attended a meeting addressed by Kaura; that he knew

Christopher Siboli since he had met him for the first time at the inauguration of Chief

Brenden Kabende at Mayuni in 1996; that after 1996 he did again not meet Siboli;

that he never knew Lascan Sikosi; that he was not a member of the Caprivi

Liberation Army and only came to know about its existence after the attack on 2

August 1999; that he had heard about the 92 person who went to Botswana over the

radio and on television; that he had never been to Dukwe in Botswana; that he never

recruited person to join the CLA; he denied ever having recruited anyone to join the

army and be sent to Angola for training; that he last attended a DTA meeting when

Kaura went to Katima Mulilo with a delegation during 1998 (not in 1999 as previously

testified); during cross-examination he stated that he is a Namibian citizen who owes

allegiance to the State; that after 701 Battalion had been disbanded meetings were

held to discuss arrangements in respect of the payment of salaries, but that he

himself never attended these meetings.

[157] The accused also testified that he knew one Victor Mututi as someone

‘involved with politics in Caprivi’69; that he attended a meeting at the house of Victor

Mututi when Mututi wanted to form a political party namely the Caprivi Development

Party; that Mututi convened this meeting since he (ie Mututi) wanted to hear from the

attendants, without first discussing the objectives of the party and without outlining

his manifesto, whether they were interested in joining the party. I must say that it is

highly unlikely that any politician would do a senseless thing like this. It is common

sense that anyone interested in politics would first want to know the objectives of a

political party prior to deciding whether or not to join such a party. How a politician

would ‘garner’ support for his political party without disclosing his manifesto would be

an exercise in futility. Nevertheless, according to the accused Mututi wanted to

establish a political party which could contest ‘general elections’.

[158] The accused, during cross-examination, testified that he had been assaulted

by no other police officers except sergeant Liswani and constable Haipa; that he was

again questioned on the 10th (of August) when he had been ‘given’ some charges;

that on this occasion he was not assaulted neither was he threatened; that he recall

the day of 21 August 1999 when a warning statement was taken from him by

69 P 36742

64

sergeant Evans Simasiku; that he cooperated and gave the statement freely even

through he was a patient at that stage because of severe assaults which he had

sustained during the first interrogation; that what is contained in the warning

statement emanated from himself; that the first time he became aware of his

constitutional rights was when he was in Grootfontein prison after his warning

statement had been taken; that after his warning statement had been taken, he was

informed of his rights by one Kupido from LAC.

[159] When the accused was asked whether at the time the warning statement was

taken he had been informed of his rights by police officer Simasiku, he answered:

‘If there were rights which I was warned with I cannot remember’70

[160] The accused identified the warning statement (exhibit EUP) recorded by

officer Simasiku on which his thumbprint appears on all the pages. He testified that

the statement was given freely on 21 August 1999 at Katima Mulilo Regional Offices;

that he elected to give a statement (instead of answering questions). When the

attention of the accused was drawn to that part in the warning statement where it

was stated that his rights had been explained before making the statement the

accused replied:

‘If he has explained to me I could not concentrate because I was a patient by that

time.’

[161] The accused was asked whether he understood his rights when they were

explained to him in Grootfontein by Kupido, the accused replied:

‘Partly my Lord because they were new things to me’.

[162] When the accused was asked whether his rights had been explained to him in

the Regional Court by the magistrate he replied that he could not ‘remember well’.

The accused however conceded that he cannot dispute that his rights had been

explained in court.

70 P 36746.

65

[163] The accused testified that the first time he had heard about the issue of

secession was in 1998 when the 92 individuals had fled to Botswana, the second

time after the attack on 2 August 1999, and that he had exept for these two times,

never heard of the issue of secession.

[164] The accused was during cross-examination by Mr January referred to

paragraph 4 of his warning statement where the following appears:

‘However to the situation of the Caprivi secession I had no idea of that had happened

on 2 August 1999 at about 03:20 or even knowing who are the attackers, leaders and

commanders. The only person I know who did one during the month of April, 1998 was

Victor Mututi who one day informed us about his party Caprivi Development Party that had

the aim to secede Caprivi from the rest of Namibia. And while receiving this information we

were disrupted by people and the topic ended there till now. I did not inform the Government

about the plans of Victor Mututi for I wanted him to inform me of the plans for a second time.’

[165] The accused conceded during cross-examination that April 1999 in time was

prior to the attack on 2 August 1999 and that he had already heard about the issue

of secession at the meeting at the house of Victor Mututi. The witness conceded that

what is contained in the warning statement came from himself.

[166] When it was put to him that he was not correct when he testified that he only

became aware of the issued of secession in 1998 when 92 persons went to

Botswana and later after the attack, the accused replied as follows:

‘The way the question was put to me my Lord I thought secession was introduced to

me by someone else.’

This answer doesn’t make any sense.

[167] When asked whether Victor Mututi was not ‘somebody else’ the accused

replied as follows:

‘But I never discussed anything about secession with Victor Mututi’

[168] The following questions and answers appear on pp 36752 – 36753:

66

‘Yes my question was not directed towards discussion. I asked you when you

became aware and here it is stated you were informed. So you became aware, not

so? …

… I became aware my Lord.

When Mr Mututi informed you? … Not in relation with secession.

I beg you pardon … Not with secession.

When you were informed by Mr Victor Mututi did you report that incident about the

secession, the imminent secession that he wanted you to agree to? … Victor Mututi

never informed me about secession. What he told me is, he informed me about

forming of his political party not about secession.

So you are retracing on your statement? … I am not my Lord.

Both cannot be correct do you agree with me? He either informed you or he did not

…

He did not inform me My Lord. He did not.

………………………..

If he did not inform you about secession then your statement must be wrong

according to you, not so? … Indeed My Lord.

[169] It is clear from the afore-mentioned passage that the accused admitted that

he had been informed of the issue of secession prior to the attack on 2 August 1999.

There is no evidence that the authorities had been informed of this pending attack.

The accused contradicted himself subsequently by denying any knowledge of

secession prior to the attack. There is no explanation for this turn around. This is a

material contradiction and his evidence that he did not know about the issue of

secession should be rejected as false. It was submitted by Mr Kauta that Kanzeka

was a worthless witness and in this regard referred the Court to the evidence during

cross-examination by counsel Mr McNally where this witness testified that the word

‘cut’ was never used during the first meeting allegedly chaired by Mr. Geoffrey

Mwilima but only used during the second meeting allegedly chaired by Mishake

67

Muyongo. It was submitted that this witness conceded that secession was not

discussed during the first meeting referred to by the witness, Kanzeka and that he

failed to identify Geoffrey Mwilima in court, denying his failure during cross-

examination.

[170] It is apparent from evidence presented by the State that Mishake Muyongo

fled to Botswana about 28 October 1998. If this is accepted then Muyongo could not

have addressed a meeting in the Caprivi region during December 1998. Kanzeka

pointed out accused no. 80 as one of the individuals who had attended the

December 1998 meeting. Kanzeka’s testimony about the December 1998 meeting

is unreliable and cannot be accepted as correct. It follows that accused 80 never

attended the December 1998 meeting as described by Kanzeka.

[171] The accused explained that the reasons why the state witnesses implicated

him was because of the high unemployment rate.One of the inferences being that

state witnesses were remunerated for their testimonies. This was not put to the State

witnesses and is pure speculation.

[172] At the very least this accused knew (from his own testimony) about the issue

of seceding the Caprivi from the rest of Namibia and failed to alert the authorities

thereto.

Leonard Mutonga Ntelamo (accused no. 84)

[173] The state witness Christopher Lifasi Siboli testified that it was decided at a

meeting held at the home of this accused during the year 1997 that the accused and

one Bernard Mucheka (accused 75) were to announce over the Namibian

Broadcasting Corporation (the NBC) that the Caprivi had been taken over by the

secessionists. This witness identified this accused and accused 75 in court.

[174] It is common cause that this accused had been employed by the NBC as

Head: Radio Operations; that the drafting of the shift rosters for operations staff was

one of his duties; that he was not on the roster on the night of 1st August 1999 nor

was he on the shift roster for the morning hours of 2nd August 1999.

[175] Shalock Sitali Sinfwa testified that the accused attended a meeting during the

year 1998 at the DTA regional office where Mishake Muyongo informed the

attendants that he was going to meet with the Chief of the Lozi in Zambia and that

68

the peoples’ idea was to secede the Caprivi from the rest of Namibia. The witness

correctly identified the accused in court as one of the attendants. During cross-

examination the witness testified that he himself had only attended two meetings i.e.

the one during the year 1994 and one during 1998. The witness conceded during

cross-examination that at neither of these two meetings was the acquisition of arms

discussed. The establishment of a military training base in Botswana was also not

discussed.

[176] The witness testified that he met the accused at the village in Musanga area

and that the accused had asked him about the whereabouts of the individuals who

were left by one Richwell Matengu so that he could transport them with his brother’s

(i.e. Gabriel Ntelamo) car to Botswana. He testified that he had not seen the accused

himself transporting persons to Botswana.

[177] Progress Munsu Mulonga testified that during 1998 the accused attended a

meeting addressed by Mishake Muyongo as well as Geoffrey Mwilima. Muyongo

informed the meeting that the Caprivi had to be cut from the rest of Namibia by the

use of firearms, by the barrel of the gun. Those in attendance were divided on this

issue. Those in support to secession were asked to raise their hands. The accused

was one of those who raised his hand as well as one Branson Kwala. This witness

was unable to identify this acused and Branson Kwala in court when given the

opportunity to do so. Due to the failure of this witness to identify the accused as one

of the attendants, this court cannot attach any weight to his testimony.

[178] There was evidence to the effect that on 2 August 1999 (the day of the attack)

four young men were taken from the house of the accused for interviews by the

police. Nothing however turns on this evidence.

[179] Richwell Nunsa Musiliso testified that here was a meeting held at the

traditional court or Khuta on 20 March 1999 where those in attendance were

informed of the inauguration of the new Chief George Simasiku Mamilli. He testified

that Branson Kwala, Mutonga Ntelamo and Gibson Luka Luka were present at this

meeting. Branson Kwala stated that it would be best if Caprivi was seceded from

Namibia since the Government forces them to inaugurate a new Chief despite the

fact that they had an ‘old’ Chief.

[180] He testified that they (i.e. Branson Kwala, Mutongo Ntelamo and Gibson

Luka) posed the following question: ‘You the Khuta who are gathered here, are you

69

aware that your Mafwe children who are police officers are being transferred from

here to other regions...?’. He testified that Leonard Ntelamo did not say anything

further at that metting.

[181] This accused testified that he was arrested on 4 August 1999 by then

detective sergeant Evans Simasiku at the NBC around 14h00. He testified that he

has never been a member of the DTA and that no DTA meeting was held at his

house during the year 1997 as testified by Christopher Siboli.

[182] He testified that Bernard Mucheka was his colleague at the NBC; that

Geoffrey Mwilima was a distant cousin of him but Geoffrey Mwilima had never been

to his house; that he knows Shylock Sitali Sinfwa as a cousin (not a brother); that

Richwell Matengu was known to him as they had attended the same church and who

was employed at the Regional Office of the Ministry of Education in Katima Mulilo;

that he never attended a meeting addressed by Muyongo during 1998 at the DTA

office; that he was never a journalist , was his entire life employed by the NBC; that

he was at his house (house no. 946 Chaka street, Katima Mulilo) at the night of the

attack ; that he knows Christopher Siboli as a distant cousin and has met him prior to

his arrest at his brother’s place of residence, but has never spoken to him; that

Gabriel Ntelamo is his elder brother and was a principal at Kwena School some

41km from Katima Mulilo; that he was the owner of a motor vehicle with registration

number N 68699 W; that Siboli had never been to his house; that if he were to

announce the successful secession of the Caprivi Region on the NBC radio he would

not have placed someone else on the roster.

[183] During cross-examination he testified that he did not deal with the contents of

the news on the radio and that he did not have knowledge in respect of the contents

of any programme before it was broadcasted; that he was involved in the technical

part of the recording of programmes and would become aware of its contents; that in

his official capacity at the NBC he became aware of the secession issue when ‘the

92 went into Botswana’ and that this event was broadcasted on radio, television and

in the print media; that he watched Muyongo on television when he was interviewed

regarding his views on the Caprivi Region; that he did not know of an imminent

attack before his arrest.

[184] The witness when asked during cross-examination what the significance was

of having stated his residential address during his evidence-in-chief the witness

70

replied that the witness Christopher Siboli testified that he knew his house better

than himself and that he wanted his legal representative to test Siboli on the ‘plot

number’, and referred to the answer of Siboli who did not know in whose house the

meeting was held in 1997, and that when Siboli was asked what significance plot

number 946 Chaka street had, Siboli replied that ‘Chaka street is in Ngwezi. Plot

946 is where the bank is situated’.

[185] What appears from the record71 during cross-examination by Mr Kauta, was

that Siboli could not recall the meetings he had attended during 1997 and when the

meeting at the house of the accused was held.72 When asked what significance plot

946 Chaka street had he answered that was a street in Ngwezi and could not

remember whether he had ever been there, and that ‘maybe it is a plot where a bank

has been built...’ The accused testified that when one enters his yard one would

immediately observe the number 946 on the door.

[186] When asked what was the significance of mentioning that he was in

possession of a motor vehicle, the accused replied with reference to the testimony of

Shailock Sinfwa that he had made some enquiries about the people left by Richwell

Matengu and had offered to take them with his brother’s vehicle to Botswana, that

having had his brand new Hilux Toyota bakkie, he would not have bothered to drive

41km to Kwena Combined School to use the vehicle of his brother. The accused

denied that he had ever said this to the witness.

[187] The accused conceded that he was a radio announcer and presenter adding

that after 1st January 1989 he had been transferred to ‘operations’. He testified that

Bernard Mucheka was also trained as a radio announcer and presenter.

[188] The accused when asked why Siboli would have implicated him stated what

he was perplexed and referred to the fact that Siboli when he gave a statement to

the police on 20 March 1999 never mentioned his name in that statement and only

did so in the year 2003 and that Siboli could not explain why his name was not

mentioned in the March 1999 statement.

[189] When asked why Sinfwa had testified against him he inter alia stated that

when Sinfwa testified he was a police officer but created the impression that he was

71 P 461472 P 4671

71

a civilian witness, and that after Sinfwa had given his statement during the year 2000

he was offered employment in the Police Force on 1st July 2003.

[190] The accused testified that he was content with Caprivi being part of Namibia

and does not associate himself with what Muyongo had said. He added that he

supports the view of an independent Caprivi provided that it is done by ‘peaceful’

means.

[191] The accused testified that he did not discuss the issue of secession not even

with his wife since it was a sensitive issue. I find this highly unlikely. The evidence

was that this was a topic ‘on the lips of almost everybody’. I must state that the

accused was during cross-examination an evasive witness at certain stages.

[192] The accused called his wife Veronica Namasiku Ntelamo as a witness. She

testified that in the year 1997 she was employed as a teacher at Caprivi Senior

Secondary and that her husband lived with her in Soweto location house no 946; that

she did not know a Christopher Lifasi Siboli and was also not aware of a DTA

meeting that took place at their house in 1997; that she was not aware of any

political meeting that took place in 1997 at their house; that she knows Bernard

Mucheka and Geoffrey Mwilima.

[193] During cross-examination she remained adamant that no DTA meeting was

held at her house; that if one Christopher Siboli had been at her house, that it must

have been in her absence; that Bernard Mucheka only visited their house when there

was work related issues to be discussed with her husband; that her husband did not

attend any political meetings in Katima Mulilo; that she was aware of the excedus of

people to Botswana since her brother was one of those who flocked to Botswana;

that she was against the secession movement and so was her husband as he did

not have any affiliation with any political party.

[194] The evidence of this witness was not discredited during cross-examination

and supports the evidence of the accused person that no political meeting was held

at his house during the year 1997. This evidence is in contrast with the evidence by

Siboli that there was such a meeting and in which meeting the role the accused had

to play after a successful secession was determined. The evidence of the accused

supported by his witness cannot in my view be rejected as false in spite of any

observation that the accused was an evasive witness.

72

[195] The evidence of Veronica Ntelamo to some extent also support the denial by

the accused that he had, according to the testimony Shailock Sinfwa, offered to

transport individuals to Botswana, in view of her uncontested evidence that the

accused did not have any party political affiliations.

[196] Nothing turns on the fact that he had attended a meeting on 20 March 1999 at

the Khuta. The question alleged to have been posed, amongst others, by the

accused, is in my view, no evidence that this accused person supported the idea of

seceding the Caprivi from the rest of Namibia.

[197] Even though the evidence presented by the accused is not above any

criticism the State has not discharged its burden to prove beyond reasonable doubt

that this accused had conspired together with others to commit those charges to

which the accused had pleaded not guilty.

Charles Nyambe Mainga (accused no. 87)

[198] Oscar Mwisepi testified and identified the accused as a ‘supporter of the

issue’ and that the accused was one who used to make phone calls from a public

phone in Dukwe refugee camp. It is not clear from the record on what basis and how

the accused supported the issue, but the testimony that the accused was a supporter

was not disputed during cross-examination.

[199] Christopher Siboli testified that he himself, was first informed about the idea of

seceding the Caprivi from the rest of Namibia when he was a mobilisor for the DTA

and when people were preparing for elections. During the year 1991 there was a

meeting at the DTA office attended by ex-SWAFT members where the issue of

secession was raised.

[200] A second meeting was held during 1991 which involved the committee

‘Kopano ya tou’, a DTA special intelligence committee. Kopano ya tou was on

standby to fight anytime using firearms. The accused was pointed out by the witness

as one who had attended this meeting and where the attendants had ‘the idea of

seceding the Caprivi’.

[201] Bernard Kanzeka testified that he had attended a meeting during November

1998 addressed by Geoffrey Mwilima at the DTA office where the issue of secession

was discussed and that money should be collected for transport to Dukwe in order

73

for people to liberate the Caprivi Region. This accused was identified as being one

of the attendants. It appears from the cross-examination by Mr Kauta that his first

meeting was in the form of a lecture.

[202] Mr Kauta submitted in his heads of argument that it is well-known that the

DTA is a registered political party and that the testimony about this meeting cannot

reasonably be true in the light of the fact that it is the State’s case that it was the

Central Committee of the UDP which resolved to establish the CLA. Furthermore, it

was submitted that there is no evidence that the accused was a member of the DTA

or the UDP and no evidence that he was a member of the CLA. It was also

submitted that the fact that this witness was a single witness ‘weighs heavily against

the acceptance of his testimony’.

[203] Another criticism against the acceptance of the testimony of Kanzeka, relates

to his credibility, it was submitted. This witness was an accomplice and was warned

in terms of s. 204 of the Act. It was submitted further that this witness after an

adjournment, because the witness was ill, changed his version in respect of the

purpose of the first meeting, and that he conceded that it was not revealed during the

first meeting that people would go to Botswana to receive military training. The

witness further confirmed that he did not testify in his evidence-in-chief that money

had in fact been donated or that transport had been offered.

[204] It was further submitted that another reason why the testimony of this witness

should not be accepted was what this Court said in its judgment in the s. 317

application.

[205] I have found (supra) in respect of the second meeting testified about by this

witness, that in view other credible evidence that Muyongo could not have addressed

a meeting during December 1998 and in view of the fact that this witness during

cross-examination73 conceded that he does not know when Muyongo had fled

Namibia to Botswana. This witness was thus wrong when he testified that Muyongo

had addressed a meeting during December 1998.

[206] Richard Samuzala Mbala testified that he had been employed as a casual

worker and that the accused had been his supervisor at Teleshop, Katima Mulilo.

He testified that on 15 March 1999 the accused asked him whether he supported the

idea of seceding the Caprivi Region from Namibia. The witness testified that he

73 P 6281

74

replied that he did not support such an idea. He further testified that during June

1999 in the corridor at the Telecom building the accused asked him what were the

reasons why the Subia speaking people do not support the secessionist idea,

because there was a lack of development in Katima Mulilo, unemployment was high

and that they have better qualifications than ‘Wambos’ who actually dominate them

or trying to rule them.

[207] The witness further testified that the accused told him that the people of the

Caprivi must stand together and secede the Caprivi from the rest of Namibia and so

form their own government. This witness testified that he told the accused that he

could not be part of it.

[208] The witness Mbala testified about a second incident during June 1999, this

time outside the Telecom building, when the accused asked him whether he was

aware of an agreement signed in 1964 in Lusaka between the former president of

the Republic of Namibia, Dr. Sam Nuyoma and Mishake Muyongo, which meeting

had been chaired by the former President of Zambia, Dr. Kenneth Kaunda.

According to this witness he replied that he did not know about such an agreement.

This witness testified that he was informed by the accused that they were going to

attack the Government in order to secede the Caprivi region from the rest of

Namibia.

[209] Mbala further testified that he had been informed by the accused that the

Lusaka agreement determined that once Namibia had become independent, the

Caprivi Region would remain ‘a country on its own led by Mishake Muyongo while

Namibia is led by Dr. Sam Nuyoma’; that the accused had informed him that those

people who had fled to Botswana were busy ‘reforming’ and would come to secede

the Caprivi from Namibia; and that the accused wanted to persuade him to follow

whatever the accused was trying to do. The accused was correctly identified by the

witness in court.

[210] During cross-examination Mbala maintained that he was a contract worker for

six months at Telecom. Exhibit EUE2 is a testimonial in respect of this witness

written by R. K. Sezuni the branch manager at Telecom Namibia, Katima Mulilo

which reflects that one R. Mbala was employed by Telecom from 1 June 1999 until

31 December 1999, and was dealing mostly with company funds for this period of six

months. Exhibit EUF is another testimonial addressed to one Ms B. M. Lukubwe

75

written by the same branch manager in which it was stated that Ms Lukubwe was

employed as a contract worker by Telecom for a period of six months as a

commercial support agent.

[211] It was submitted by Mr Kauta in his heads of argument that the testimonial

addressed to R. Mbala was not written on a letterhead of Telecom, whilst exhibit

EUF was written on a Telecom letterhead and it was submitted that this shows the

close relationship between Sezuni and Mbala and that their evidence was contrived.

It appears even though exhibit EUF2 was not on an official Telecom letterhead there

appears on it in bold letters: ‘TELECOM NAMIBIA CUSTOMER SERVICES,

KATIMA MULILO’.

[212] An instruction was put to Richard Mbala during cross-examination that he

never worked as a contract worker at Telecom, but that his late brother Thaddeus

Mbala worked at Telecom during that time. The witness acknowledged that his

brother was employed there but insisted that he worked there as well as a contract

worker. This witness by the time of his testimony was employed as a police officer by

the Namibian Police since 15 February 2001. During cross-examination the witness

testified that he, after the attack during August 1999, had a conversation with a

police officer known to him only as ‘Hyper’ in connection with his conversation with

Charles Mainga, but that his witness statement was only taken on 6 September 1999

in Walvisbay where he was stationed at that stage.

[213] This witness during cross-examination stated that during his first conversation

he had with the accused, the accused did not state in which manner the Caprivi

would be seceded and that the accused did not mention that it would be seceded by

violent means. This witness conceded that in the conversation he first had with the

accused on 15 March 1999 does not appear in his written statement and explained

that it was because at that stage he was not concerned about that issue and did not

report it.

[214] It was put to him that Regina Sinvula would know whether or not he had been

employed at the Teleshop and that if necessary she would be called to testify that

she only knew Thaddeus Mbala who worked at the Teleshop.

[215] It was further put as an instruction that the witness had never worked with the

accused, that the conversation in the corridor never took place and that the accused

never had a discussion about secession with the witness since the accused being a

76

Mafwe and the witness a Subia a discussion on such a topic could not have taken

place; that the discussion was about the accused being accused of having said that

the Subias are stupid which constituted a crime punishable by the traditional

authorities (this was denied); that there were never casual workers at Teleshop; that

contract workers were employed for six months; that during the period testified by

the witness only one contract worker, Likuwe was employed at Teleshop. The

witness testified that he received no pay slips since he had always been paid by

cheque.

[216] The witness testified about print outs of telephone calls made to Denmark and

Botswana from the office of the accused person, but did not say that the accused

himself made the calls.

[217] Regina Sinvula, a state witness, testified that she was employed at the

Teleshop, Katima Mulilo during the years 1998 to 1999 and that she was working

with one Thaddeus Mbala and the accused person. She confirmed that Richard

Mbala worked at the Teleshop as a temporary employee for six months. She further

testified that the accused person used to receive a number of visitors regularly

(including Gabriel Mwilima, Richard Mukau and Joseph Muchale) to such an extent

that she laid a complaint against the accused person because when she wanted to

work with him he always had visitors.

[218] It was submitted by Mr Kauta that Richard Mbala had no opportunity to have

met the accused person since it was the brother of the witness, the late Thaddeus

Mbala, who had worked at Teleshop and not the witness. This is however not borne

out by the evidence. Exhibit EUE2 and the testimony of Regina Sinvula corroborate

the testimony of Richard Mbala that he had been employed at Teleshop. Mbala was

not discredited during cross-examination and from the answers given to questions

about the names of personnel who had been employed there it was clear that he

could only have obtained that knowledge if he had worked there.

[219] It is obvious why the accused person gave instructions to the effect that the

witness Mbala did not work there, namely, to lay a foundation for the argument that

he had never discussed the idea of seceding the Caprivi from the rest of Namibia

with this witness. In my view there is no support of the submission that the evidence

of Mbala and Sezuni was contrived. The submission that because the event of 15

March 1999 does not appear in statements to the police, and therefore afterthoughts,

77

cannot be supported. It is well-known, and there is ample authority on this point, that

when witness statements are given they cannot deal with every eventuality. In any

event, this witness has given an explanation why the event of 15 March 1999 does

not appear in a witness statement.

[220] Raymond Kamwi Sezuni testified that he was employed at Telecom Namibia

in the Caprivi Region as a branch manager during the year 1999 and was the

supervisor of the accused person.

[221] As branch manager his responsibilities included recruitment of staff; that the

accused was the supervisor of the Teleshop with two support agents, namely, the

late Thaddeus Mbala and Regina Sinvula; that during 1999 two contract workers,

namely, Judice Lukubwe and Richard Mbala were employed as relief officers; that

Richard Mbala had been on contract for six months; that he had signed a testimonial

given to Richard Mbala to this effect; that Richard Mbala had been employed from 1

June 1999 until 30 December 1999.

[222] During cross-examination this witness agreed that a grievance had been laid

by the accused against himself in respect of the appointment of one Ben Mirjam but

explained that the appointment was made by a panel consisting of five persons

which included himself.

[223] This witness denied that such report angered him so much that he had

allegedly said that he would take revenge and denied that ‘false testimony’ is his

revenge.

[224] The accused testified that he had been employed by Telecom Namibia since

30 March 1991. He had been employed as a storeman in the South West African

Territorial Force (SWAFT) since January 1985 until its demobilisation in April 1989.

[225] The accused testified that Raymond Kamwi Sezuni was his immediate

supervisor at Teleshop; that Thaddeus Mumbela Mbala and Regina Chuma Sinvula

were employed as commercial agents; that his office was used as an administration

office for the whole station; that all stationary, fax machines and printing machines

were in his office; anyone could make international calls from his office phone and

that he made a call once to his sister in Botswana; he denied that he knew the

witness Richard Mbala; denied that this witness worked at Teleshop; denied ever

having a conversation with Richard Mbala; that during June 1999 he stayed at

78

Omashare Lodge in the Kavango; that he has after ‘Kopano Ya Tou’ had been

demolished not attended any meeting with the purpose of forming the CLA; that he

did not know Chistopher Lifasi Siboli; that he did not know Oscar Mwisepi; that he

had never been in Dukwe as a refugee; on 1st August 1999 he had been asked to

build a school teachers house; he was arrested on 4 August 1999 and taken to a

room where police officers Patrick Liswani; Aupa and Haipa were; he was badly

assaulted by Patrick Liswani; he was not told why he had been arrested; that Liswani

never spoke about the issue of secession; that he first time he head that he was

facing a charge of high treason was on 21 August 1999; that he never recruited

anyone to join the CLA.

[226] During cross-examination the accused testified that contract workers were

paid by cheque from the headquarters in Otjiwarongo; that during the time he was

employed there was only one contract worker; that Richard Mbala testified against

him in order to get a post in the Police Force; that he (i.e. the accused) did not know

Richard Mbala; that he first heard about the issue of seceding the Caprivi during

1998 when it was announced over the radio (NBC) and in the newspaper (New Era)

that 92 people have crossed into Botswana who wanted to secede the Caprivi

Region; that he had not discussion with anybody else regarding the secessionist

movement; that he was a member of ‘Kopano ya tou’; that he had known Muyongo

as the President of the DTA; that he attended a meeting during 1989 addressed by

‘Mr Muyongo and Mr Sam Nujoma’; denied that he at no stage informed anybody of

some ‘interaction’ between Muyongo and former President Nujoma; that the witness

Sezuni is a corrupt person by employing his cousin; that he had informed counsel

that witness Sezuni was a corrupt man (this was however never put to the witness

Sezuni); that Sezuni allegedly said that he would take revenge on 12 May 2000

when they were both in Rundu; that Sezuni went to the police and reported him,

asking the police why they did not arrest him (this was also not put to the witness);

that the witness Regina Sinvula never had a conversation about her taking revenge

against him; that he was not aware of any other employee mentioning the taking of

revenge against him; that he was on friendly terms with Regina Sinvula; that

Sinvula’s testimony about him telling her about an agreement between former

President Nujoma and Muyongo was a fabrication; conceded that he was

speculating when he testified that there was a collaboration between Sezuni and

Regina Sinvula to try to implicate him; that Liswani as well as police officer Haipa

assaulted him with black sjamboks.

79

[227] This accused denied that he did not mention officer Haipa during his

evidence-in-chief. The record however reflects that when he testified about an

assault with sjamboks he only mentioned Liswani.

[228] The accused testified that he was assaulted on 4 August 1999, and on 21

August 1999 when his warning statement was taken by Evans Simasiku, he was not

assaulted or threatened by Simasiku; that he had a good relationship with Bernard

Kanzeka and denied that he attended any meeting as testified by Kanzeka.

[229] The accused denied that he had testified that he had attended a meeting

addressed by both Muyongo and former President Nujoma. This is a contradiction.

[230] The accused testified that he only came to know witness Siboli in court and

that he did not know the witness Mwisepi. This accused testified that police officer

Simasiku when taking his warning statement informed him that he may decide not to

make a statement but that he had to answer questions since he had no choice. The

accused further emphatically denied74 that he was ever informed of his right to legal

representation. The accused changed his testimony afterwards by stating that his

rights had been explained to him but it was not explained ‘how to go about it’. This is

another contradiction. The accused was further confronted75 that it is reflected in his

warning statement that he wished to answer questions and would after consultation

with a legal representative give a statement and how he knew to consult with a legal

representative before making a statement. The accused replied76 Simasiku ‘was

writing what he thought was best’, and that he (i.e. the accused) had never known

about ‘these legal issues’, and was made to sign.

[231] It must be stated that the answers given by the accused person to the

questions posed were exculpatory in nature did not implicate the accused in the

commission of any crime.

[232] The accused conceded that one of the reasons given why Richard Mbala had

testified against him namely, that Mbala wanted to be employed in the Police Force

was speculation, since he was not privy to any agreement with the Police Force to

that effect. It was further pointed out to the accused that Mbala had given his

testimony during 2007 after he had already been employed as a police officer since

February 2001. 74 P 36452, 36453, 36454.75 P 35454, 36455.76 P 36455.

80

[233] The accused testified that he had been informed by way of television and

newspapers that the 92 persons who had left Namibia during 1998 went to Botswana

to secede the Caprivi from Namibia. He further testified that he had a telephonic

conversation with his sister (who was in Botswana) on 12 May 1999 during which

conversation the told her to come back. The accused denied that his sister was there

in support of the idea to secede the Caprivi but testified that she went there to further

her education. When the accused was waked why it was then necessary to request

her to return (schooling in Botswana being such an innocuous activity) he replied

that she left without saying ‘good-bye’ to him.

[234] When it was put to the accused that he ‘had full knowledge of the secessionist

movement’77 and ‘wanted her to come back and stop the idea’, he strongly denied

‘full knowledge’, but conceded that he wanted her back because he ‘never liked the

idea’. It is apparent that the accused provided two different reasons why according

to him he wanted his sister back. I must state that the accused was a very evasive

witness during cross-examination.

[235] The accused called a witness, Beauty Mundia Lukubwe. She testified that

she was employed at Telecom from December 1998 until 3 June 199978 at Telecom

and in the Teleshop in Katima Mulilo; that she used to work with Regina Sinvula and

Thaddeus Mbala and that the accused was their supervisor at the Teleshop; that she

had known Richard Mbala as one of her classmates; that Richard Mbala was not

employed as a contract worker at the Teleshop between March to June 1999; that

exhibit EUF (dated 3 May 1999) is a testimonial given to her by Mr R. K. Sezuni, the

branch manager at Katima Mulilo; that she was at Rundu Telecom from 1st June

1999 together with the accused person.

[236] During cross-examination the witness conceded that she made a mistake

when she testified that exhibit EUF was certified as a true copy in Katima Mulilo

instead of Windhoek; that she worked from December 1998 until April (1999) at the

teleshop in Katima Mulilo, and during May and June worked on contract in Rundu

until June month end; that she was not in Katima Mulilo during the month of June

1999; that after her contract had expired Mr Sezuni phoned her during the last week

of July 1999 and she then worked from the last week in July 1999 until the second

week of August 1999 at the Teleshop.

77 P 3646978 P 36473

81

[237] The witness conceded that she was not in a position to state that Richard

Mbala had never worked at the Teleshop. She testified that the accused is her

uncle. There appears a contradiction in her testimony regarding when her contract

had ended. The first date given as 3 June 1999 and a second date as the end of

June 1999. The evidence of this witness does not in my view assist the accused in

his denial that Richard Mbala had worked at Telecom. The accused endeavoured to

paint a picture of himself an apolitical individual, unsuccessfully I may add. Regina

Sinvula is an idependent witness and no reason exists why her testimony should be

disregarded.

[238] If one has regard to the contradictions in his testimony, his evasiveness

during cross-examination and the evidence of the State witnesses, these

considerations compel me to conclude that his denial that Richard Mbala was

employed for the period mentioned is not reasonably possible true and is rejected.

This in turn implies that the accused indeed had the opportunity to speak to Richard

Mbala and that he indeed had the conversation with the witness as testified. This in

my view supports the contention that the accused actively supported the idea of

secceding the Caprivi Region and that he had known about an impending attack by

the CLA in order to achieve this goal and did not inform the authorities about it.

Kambende Victor Makando (accused no. 90)

[239] Oscar Mwisepi testified that the accused was his teacher and was one of the

attendants at a meeting which was chaired by Muyongo at Ngwezi community hall in

Katima Mulilo, ‘concerning the issue at hand’, ‘that matter we are seated here for’.

The accused did not say anything at this meeting. Mwisepi testified that he met the

accused at a second meeting at the house of Gabriel Mwilima. It is not clear what the

purpose of this meeting was. Mwisepi testified that the accused was one of the

persons who on the issue of secession, spoke ‘openly without fearing anything’. 79

No further details were provided. Mwisepi identified the accused in Court.

[240] Charles Molae Lizazi testified that he was attached to the SWAFT from 1985

until its demobilisation in 1989. During the year 1997 he attended a meeting at the

DTA Regional Office addressed by Muyongo during which Muyongo informed those

in attendance that Caprivi should be seceded from Namibia ‘through fighting’. At this

meeting one Godwin Siyongo (late) reminded Muyongo that he at one time was ‘a

79 P 771

82

party to the people who were writing . . . the Constitution of this country’, and wanted

to know whether Muyongo had turned against that which ‘are enshrined in the

Constitution’, to which Muyongo answered that he was not going to work with

cowards. Muyongo also informed them that the UDP would no longer be affiliated to

the DTA. Furthermore Siyongo who had been a regional coordinator was demoted

to ordinary member. Siyongo then left the meeting and others including himself as

well as one Progress Mubonda followed Siyongo because they were ‘not in

concurrence with the ideologist of the party on that same idea . . .’

[241] This witness testified about an incident (exactly when this occurred is unclear)

when coming from Katima Mulilo on his way to Linyati he was stopped by two

persons one Nicolas Toliso (deceased) and one Victor Makando and was asked by

Victor Makando: ‘Why are you seeming to be isolating yourself? And if it so happens

that we win these things, on which side are you going to be?’. According to this

witness ‘it seems’ that the issues mentioned referred to the secession of the Caprivi

Region, but continued to state that Victor Makando did not specifically inform him

what the issues were that he (i.e. Makando) referred to.80 The witness testified that

he knows Victor Makando as a teacher and his ‘nephew’. The witness could not tell

where Makando was teaching. This witness was able to identify accused no. 90 as

Victor Makando.81

[242] Mazezo Calvin Mafenyeho testified that he was a student at Simataa Senior

Secondary School during 1998 (in Grade 10) when one Chris Mushanana, one

George Lisho and the accused person assigned one Dennis Sizeho to call the

students to the dining hall. The accused was a teacher at this school. There they

were encouraged by Chris Musshanana to go to Botswana in order to receive free

education. Mushanana informed them that after the completion of their education,

and after the Caprivi Region had been liberated, they would be provided with

employment. It was not said in which way the Caprivi Region would be liberated.

[243] This witness testified that they did not agree with what was said. Victor

Makando, Chris Muchanana and George Lisho returned for the second time on a

‘Sabbath’ with the same request, unsuccessfully. It was on the third occasion

according to this witness when they agreed. On this occasion Victor Makando wrote

down their names – ‘maybe’ 150 names. During the December holidays the witness

80 P 634381 P 6351

83

and a friend travelled to Ngwezi where they met Chris Muchanana, George Lisho

and Victor Makando. The next morning these three individuals transported them in a

motor vehicle to a place called Miako and from there they crossed into Botswana.

These three individuals then returned. This witness could not identify the accused in

court.

[244] During cross-examination the witness confirmed that Bollen Mwilima and

Victor Makando wanted to recruit him in order to join people at a base in Singalamwe

and that they threatened to kill him. Mr Kauta submitted that the witness conceded

that in his first statement to the police he referred to one Victor Matengu and not

Victor Makando. This witness conceded that it might have been a mistake,

nevertheless insisted that Victor Makando tried to recruit him. Mr Kauta further

submitted that the reason why his client Victor Makando was arrested, was because

his name appears on Exhibits EGF (13) and EGK(1) which had been referred to in

evidence as the so-called deployment lists. The name ‘Kadende M’ appears on

Exhibit EGF(13) and the name ‘Kabende Martin’ appears on Exhibit EGK(1). These

names are indeed not similar to the name of this accused person. This witness was

unable to identify the Victor Makando in court.

[245] It was further submitted, and correctly so, that it appears from the further

particulars, provided by the State, inter alia, that the case the accused had to meet

was that he participated in the attack on Katima Mulilo on 2 August 1999 and that no

such evidence was presented. On this point it was submitted by Mr Kauta that on

this version Victor Makando was one of the attackers on 2 August 1999 but in

contrast when Mr July addressed this Court, he submitted that his clients were

supporters of the idea to secede the Caprivi from the rest of Namibia.

[246] The accused testified that he was arrested on 4 August 1999 whilst he was at

Bank Windhoek in Katima Mulilo; that he was taken to the police station where he

had been assaulted by police officers using sjamboks (photographs depicting scars

were shown in court); that prior to his arrest he was employed as a teacher at

Mubisa Primary School; that he never taught at Chimata Combined School; that he,

himself, was a learner at Chimata Combined School in the eighties doing ‘Form 1’;

that a person appearing on a photograph, Exhibit Z, is that of his ‘extended uncle’,

namely Martin Makando Kabende (deceased); that he was not part of a group that

had attacked the Katima Mulilo town centre; he denied having been armed with an

AK47 rifle; that he knew Oscar Mwisepi as one of his learners at Kanono Combined

84

School where he was teaching before being transferred to Mubisa Primary School;

denied having attended a meeting at Siselo; that Gabriel Mwilima is his first cousin;

that he had never attended a public meeting at the house of Gabriel Mwilima; that he

did not know the state witness Mazezo Calvin Mafenyeko and only saw him for the

first time in court; that the state witness Charles Molate Lizazi is his uncle; that the

second wife of Charles Lizazi who was much younger than himself dressed

inappropriately in the village which made the villagers complaining to Charles Lizazi

and that the conversation that he had with Lizazi was about that issue; that he knew

Roger Kepa as one of his learners at Kanono Combined School; that the testimony

of Kepa is untrue; that he never met this witness as testified by him; that he has

never been called Victor Matengu; that he never knew Chris Mushanana; that he

knew Mishake Muyongo as a member of the National Assembly; that he had never

attended a meeting in Ngwezi addressed by Muyongo; that he never recruited

students at either Kanono or Mubisa schools; that he never transported persons or

would be soldiers to Botswana; and that he had owned a Toyota Corolla motor

vehicle.

[247] During cross-examination this witness testified that he did his Grade 8 in 1986

at Simata Secondary School and since then had not returned to that school; that he

was not sure whether Simataa Secondary School was one of the schools he had

applied for a teaching post; that he did not know anything about ‘the shooting on 2

August 1999’; that he did not know anything about the secessionist movement apart

from the group of 92 which crossed into Botswana; that he was at his house in

Katima Mulilo and heard the shooting during the early hours of Monday 2 August

1999; that he reported for duty on 2 August 1999 but was later ‘released’ by the

school principal; that it was reported in the newspapers and over the radio that

people were being harassed that was why they moved into Botswana; that he heard

that the group of 92 had crossed into Botswana in order to ‘cut Caprivi from the rest

of Namibia’; that he himself did not witness any harassment; he denied that he had

registered 150 students who were interested to go to Botswana.

[248] Roger Kepa testified that during the year 1999 after he had been repatriated

from Botswana he met Victor Makando together with one Bollen Mwilima. The

witness testified that he knew Victor Makando as his teacher. On this occasion Victor

Makando informed him that he should go to Singalamwe and that Victor Makando

uttered virtually the same words which Bollen Mwilima had uttered on a previous

85

occasion namely, that those who came back from Dukwe would be the first to be

killed since they were spreading information that the people at Dukwe were suffering.

According to this witness Bollen Mwilila further informed him that there were people

at Singalamwe in the bush preparing themselves to cut the Caprivi Region by

fighting.

[249] During cross-examination this witness testified that all 150 students from

Simataa Senior Secondary School went to Botswana, however he conceded that he

could only testify about one incident when he himself was transported to Botswana;

that Victor Makando was teaching at two schools namely at Muvisa and at Liseke;

that he does not know a person by the name of Victor Kambende Makando; that it

was incorrect to state that the 150 students had been recruited as rebels; that it was

incorrect to state that he was recruited as a rebel in order to ‘join an army’, that it

was incorrect to state that he had been transported to Botswana in order to ‘join an

army’, that he went there exclusively for education purposes; that the word ‘military’

was never used during the gatherings at the school hall.

[250] It was submitted by Mr July in his heads of argument that the accused was

inconsistent during cross-examination by stating that he never applied to teach at

Simataa Secondary School, later he was not sure whether he applied to be a teacher

at Simata, that he only completed Grade 8 at Simata Secondary School and testified

that he had never been at Simata Second School. These inconsistencies, it was

submitted, indicate that the accused wanted to distance himself as far as possible

from the said school because there was evidence that he had addressed pupils at

Simata school hall.

[251] Mr Kauta in his heads of argument submitted that there are no inconsistencies

apparent from the answers of the accused during cross-examination and referred to

the questions posed during cross-examination, namely, whether the accused was

acquainted with the ‘set-up’ of Simataa School to which the witness answered in the

affirmative since he had been a student at the school in 1986.

[252] In respect of the question whether the accused had applied to teach at

Simata, the accused explained that when one applies a variety of schools are given

(presumably on the application form), that Simata School may be one of the school

he had applied for, but was not sure about it. The accused in reply to a question

stated that when he left Simata Secondary School in 1986 never went back there.

86

[253] In my view when one has regard to the inconsistencies referred to, in context,

the answers by the accused were clear and satisfactorily explained these perceived

inconsistencies.

[254] It was further submitted that the identification of the accused was not in

dispute despite the fact that Mazezo Calvin Mafenyeho did not identify Victor

Makando in court. That this is so, it was submitted, was that the witness testified

that Victor Makando was a teacher at either Muviza or Liseke and that the accused

had admitted that he taught at Mubisa Primary School. ‘Muviza’ and ‘Mubisa’ may

sound similar, but it was never established during re-examination whether it was

indeed the same school. The inference that those are two different schools is equally

compelling. The witness, Mafenyeho during cross-examination testified that he had

never seen photographs of accused persons, that he never attended an identification

parade and that he did not know where the Victor Makando, he knew was. He did

not exclude the possibility82 that Victor Makando could have been teaching at Muviza

or Liseke on the day he testified (i.e. on 28 February 2006) since the witness did not

know where he was.

[255] One of the issues in dispute at the inception of this trial was the identity of the

accused persons. Thus the State has the burden, inter alia, to prove beyond

reasonable doubt that it was accused no. 90 who was one of the individuals who had

addressed the students in the school hall and who subsequently had transported the

witness to Botswana with the purpose to secede the Caprivi Region from the rest of

Namibia. In my view the State failed to discharge this burden.

[256] The testimony of the witness, Charles Lizazi, on its own, does not prove

beyond reasonable doubt (even if it is accepted that accused no. 90 spoke to him)

that accused no 90 was a supporter of the idea to secede the Caprivi Region.

[257] In respect of the evidence of Oscar Mwisepi his testimony was vague and

without reference to any specific incident. Mwisepi made a general statement that on

the issue of secession this accused spoke ‘openly without fearing anything’. The

witness for example did not state whether accused no 90 spoke in support of

secession or against it. Roger Kepa was unable to identify the person who allegedly

tried to recruit him and who had allegedly threatened him as the same person as

accused no. 90.

82 P 7783

87

[258] It was submitted on behalf of the State that the evidence of the accused about

a deceased uncle of him depicted on Exhibit Z was not clear and was presented to

cause confusion and doubt, i.e. that he was wrongly arrested, and was an

afterthought.

[259] Mr Kauta disagreed and referred to the record83 where Mr January asked the

accused what the relevance was of the photograph to which the witness replied:

‘What transpired is this My Lord. When I was arrested by Patrick Liswani he told me

specifically you are the people who were shooting on 2nd August. I was surprised.’ I could

not make a connection as to why he was telling me that. I was taken to the police station. I

was assaulted. Later on from 1999 to 2001 the time when those photographs at the police

station were given to us that is the first time that I came to see the photograph of my uncle.

Then I made a connection regarding that Patrick Liswani was telling me when he arrested

me’.

[260] It was submitted by Mr Kauta that there is no confusion and that this answer

clarified an issue, namely that the accused person was simply arrested because he

shares a name similar to a name that is on the deployment list and that the accused

has testified that that person was his uncle. It was in addition submitted that this

evidence was not challenged by the State.

[261] I am nevertheless of the view, having regard to all the evidence presented by

the State and for the reasons mentioned, that the State failed to prove the

commission of the charges preferred against accused no 90.

Norman Chrisopher John Justus (accused no. 93)

[262] Helmut Kachibolewa Muzwaki was warned in terms of the provisions of s. 204

of Act 51 of 1977. This witness testified that during the year 1998 he was a student

at Sibinda Combined Shool and was in Grade 10 when he attended a meeting during

October/November 1998 at Sibinda Combined School addressed by Mishake

Muyongo and Geoffrey Mwilima. At this stage Muyongo and Geoffrey Mwilima had

resigned from Parliament. One of the attendants were Martin Tubaundule.

Muyongo spoke about the cutting of Caprivi from the rest of Namibia.

[263] Subsequently he heard about 92 rebels who fled to Botswana and was

informed by one Lister Tutalife to follow them, to which he agreed, and was

83 P 36701

88

subsequently transported by Lister Tutalife in a ‘DTA car’. In this vehicle were other

persons namely Batubaja Beauty (a female), Professor Likanyi, Liwena and Lisonize.

They were dropped at Lizauli next to the border with Botswana where they cross into

Botswana. The witness later arrived at Dukwe refugee camp. He remained in

Dukwe for about six months and returned through the process of repatriation to

Namibia.

[264] One evening after his repatriation he saw one John Samboma coming to their

village and went to the courtyard of one Richwell Manyemo. John Samboma was

carrying ‘a very big gun’. According to this witness John Samboma was

accompanied by the accused and another white man. The accused was the driver of

the vehicle with a GRN registration number in which they arrived there. The vehicle

was described as ‘a 4X4 double seat’. The witness testified that he knew the

accused since the accused had worked at the Government Garage in Katima Mulilo.

These visitors stayed for about one hour at Richwell Manyemo’s courtyard and this

incident occurred during June 1999. According to this witness Richwell Manyemo

was a passenger in the vehicle when they arrived there. The accused was correctly

identified by this witness in court.

[265] During cross-examination the witness conceded that it was dark in the village

since there was no electricity; that he gave his first statement to the police on 11 May

2000, eleven months after the alleged incident; that at that stage he was unable to

state who these white people were; that he informed the police officer that the

information he had was that these white people came to look for curios; that he

personally formed the opinion that they were part of the secession movement

because they were together with John Samboma; that he had known Norman Justus

prior to that evening since Justus worked at the Government Garage; that he saw

Justus twice at that courtyard; that fourteen months after having given his first

statement, he gave a second statement on 10 July 2001; that four months after

having given his second statement, he gave a third statement on 14 November

2001; that sixteen months after having given his third statement, he gave a fourth

statement on 11 March 2003; that on all four occasions the police officers wanted to

know from him who were involved regarding the issue of seceding the Caprivi

Region; that he had on all four occasions forgotten the name of the accused person ;

that in all four statements he had informed the police of only one incident when the

white people came to the courtyard; that he testified that they came twice to the

89

courtyard; that he did not inform the police that John Samboma had arrived there

with the two white persons; that he did not tell the police that Norman Justus was

one of the white persons who had arrived with John Samboma; and that in all four of

his statements he never told the police that it was a 4x4 vehicle belonging to the

Government of Namibia which came there.

[266] This witness conceded that he never told the police when he deposed to his

four witness statements that it was a 4x4 Government vehicle, that John Samboma

had a weapon, that Norman Justus was one of the white persons, and that they were

in support of the idea of seceding the Caprivi Region. This witness insisted that this

was what he had seen that particular night.

[267] It was further put to his witness that the fact that he did not mention that

Norman Justus arrived there in a government vehicle that he had deprived the police

to further investigate his version. The witness reluctantly conceded this.

[268] It was put to this witness that the version of Norman Justus is that at that

stage there was no white 4x4 double cab vehicle at the Government Garage and in

the whole of the Caprivi Region as part of their fleet. The witness disagreed.

[269] It was also put to the witness that Norman Justus had never been to the

courtyard of Richwell Manyemo. The witness disagreed.

[270] In re-examination by Mr January the witness testified that he recalled the

name Norman Justus ‘when they picked me from home coming here’84. This witness

testified on 14 February 2006 about six years after having deposed to his first

witness statement. When asked when he remembered the second incident where

two white persons came to the courtyard he replied: ‘recall those when I was here’85.

[271] When asked when he remembered the big gun that he had allegedly seen

with John Samboma he replied: ‘When I arrived here’.

[272] During re-examination this witness explained with reference to his witness

statement that Richwell fooled the people by saying that the whites ‘only came to

look for curios because they were together with the rebel leader John Samboma’.

[273] During cross-examination Mr Kauta when confronting the witness about the

fact that he had mentioned in his viva voce evidence four matters which do not 84 P. 737885 P. 7379

90

appear in his witness statements, skeptically remarked, and not without good reason

I may add, that the memory of the witness is like good wine which improved with

time.

[274] The explanation why he only remembered these four matters shortly before

his testimony is in my view implausible. If the witness had indeed seen what he

claimed to have seen as testified in court, then the question which begs to be

answered is: Why were those matters not mentioned in any one of his witness

statements. In my view these were material omissions. The evidence of this witness

on those four matters mentioned, is in my view, in the absence of an acceptable

explanation why these were not mentioned in his statements, and afterthought.

[275] Christopher Siboli testified that he attended a meeting held at the house of

Mishake Muyongo during the year 1997 where the accused was one of the

attendants. This accused was identified by the witness in court. At this meeting

according to the testimony of the witness, Mishake Muyongo said that they should go

to Angola to collect fire-arms. This view was echoed by Geoffrey Mwilima and Alfred

Tawana. John Samboma and Thadeus Ndala were present and supported the idea.

The witness testified that the accused said that he was supporting ‘the idea of

seceding Caprivi, because Caprivi is a beautiful country and he wanted to stay in

Caprivi’. The accused,according to this witness, promised to donate diesel and food

in exchange for fire-arms.

[276] The witness Siboli testified at this meeting at the new house of Muyongo, that

Muyongo himself introduced the accused as ‘a member of the Party and with the

idea of seceding the Region’.86 Siboli testified that John Samboma and Tawana

Alfred said: ‘. . . this white man is one of us and he is going to assist, he will assist in

the issue of Caprivi’87. According to this witness the accused said at this meeting

that he was in support of the idea of seceding the Caprivi. It was further testified by

this witness that the accused donated diesel which was taken to Angola.

[277] Siboli further testified about a meeting at the DTA offices where discussions

took place on how to acquire fire-arms from UNITA. Fuel had to be acquired by way

of Government orders from Zambezi Shell filling station. This witness testified about

an incident at the Zambezi Shell filling station where vehicles had to be refueled in

order to take people to the CLA camp at Singalamwe. He testified that one person, 86 P. 3780.87 P. 3782.

91

namely Richard Mundia, arrived there with a government fuel order book. The

accused arrived there and signed this fuel order book. The witness testified that six

200 litre drums were filled with fuel.88

[278] During cross-examination it was put to the witness Siboli that there was one

procedure for filling up a motor vehicle with the fuel and a different procedure to fill

up a drum with fuel. It was put to this witness that Norman Justus will testify that it

was impossible to fill up a drum with a government order book since one would have

needed a special permit to fill up a drum. The witness persisted that the drums were

filled up with a government order book, since the accused ‘was the boss’.

[279] It was further put to the witness that Norman Justus will testify that his only

responsibility at Government Garage was to issue vehicles. The witness still

persisted with the same reply, namely, that the drums were filled by using a

government order book. This witness conceded that he cannot deny that Norman

Justus was only responsible for issuing vehicles to Government Garage personnel

under his control. The witness also conceded that he couldn’t deny that a special

permit and not a government order book was needed in order to fill up a drum with

fuel.

[280] The witness Bernard Bareka Kanzeka testified about another incident at

Zambezi Shell filling station when 3 x 210 litre drums were filled with diesel on the

account of Mishake Muyongo. He testified that only two persons had permission to

obtain diesel on the account of Muyongo, namely Muyongo himself and one Mathew

Lutambo, and that the account book was kept with the manager of the service

station. He testified that on one occasion Mathews Lutambo arrived at the filling

station with a 4x4 motor vehicle in which there were 3 drums. The accused came

and stopped the vehicle he was driving at the manager’s office and entered the

office. The accused emerged with the account book of Muyongo and authorized him

to fill the three drums and debit the account of Muyongo telling the witness that he

(i.e. the accused) was authorized to use that book. According to this witness whilst

the drums were being filled he had a conversation with Lutambo in the Sifwe

language, who informed him that he (i.e. Lutambo) was taking the drums to Angola

in exchange for American Dollars. This witness testified that he had known that the

accused had been employed at the Government Garage.

88 P 4080.

92

[281] During cross-examination by Mr Kauta the witness testified that on 11

December 1999 he had been collected at the village by police officer Evans

Simasiku and taken to Ngwezi police station in Katima Mulilo; that at that stage no

statement was taken; that during the year 2001 the police officer came for a second

time and took him to a police Inspector who questioned him and subsequently a

statement was obtained from him on 16 March 2001; that he was not aware of any

corrections dated 26 February 2001 which appear in his statement. This witness

failed to identify Norman Justus as an accused person in court.

[282] Chrispin Makuta Saushini testified that he worked at the Government Garage

in Katima Mulilo and that Norman Justus (accused 93) was his supervisor and a very

close friend. On 2 August 1999 at approximately 07h45 he arrived at work and

found no one there. He then drove and found Norman Justus at a friend’s house

and reported to him that there was war in town. Justus responded that he did not

believe him and said it was soldiers shooting at each other. The witness testified

that Norman Justus was absent from work that Monday until the Thursday and that

the saw Norman Justus approximately 15h00 on that Thursday at the Government

Garage. The next morning he asked the accused where he had been and the

accused informed him that he had gone to Zambia to buy food for his children.

When asked how did he cross into Zambia the accused replied that he ‘used

manoeuvre’ to get to Zambia. When asked where did he sleep the accused

answered he ‘was booked to an American89’, and this witness testified that he did not

know whether the accused referred to a small hotel, called Sinanga; that he later

received a requisition from the Inspector-General for four vehicles but due to the

situation in Katima Mulilo eight vehicles were provided; that the accused at a later

stage requested him to write a report on the fact that eight vehicles had been

provided. The witness testified that accused 93 put in place a system to prevent

theft of fuel.

[283] During cross-examination this witness testified that accused 93 had to sign on

a special permit; that they have never signed a special permit for filling six drums

with fuel and that he would have reported Norman Justus immediately had he seen

that he had authorized the filling of six drums of fuel.

[284] This accused testified that he was arrested on 9 August 1999 in his office at

the Government Garage where he had been employed as senior artisan foreman

89 P. 5107

93

from the end of February 1995; that it was impossible to fill up a drum with fuel at a

garage because no container could be filled up without a permit which permit would

have a specific number; that on the morning of 2 August 1999 he took his children to

school and was stopped by a police officer who informed him that nobody was

allowed to go to work or to go to school, whereupon he returned home with his

children; that on 3 August 1999 he went with his wife and children to a place out of

town called Kalembeza, a fishing camp90; that he never went to Zambia; that he was

with one Sanchini at the camp91; that he returned to town on Tuesday and gave

instructions for the recovery of a military vehicle and returned to Kalembeza; that he

returned on the Thursday and informed the Chief Clerk that he had to do shopping

for groceries and would be back on the Monday; that he was arrested on 9 August

1999 for the alleged theft of fuel; that he had laid a complaint of theft of fuel at the

Government Garage during February 1999 with Inspector Carstens; that he never

attended a meeting at Muyongo’s house where he promised to provide diesel; that

he did not know Christopher Siboli; that he was not acquainted with Muyongo; that

he knew the witness Oscar Mwisepi but denied that he had been to the house of

Muyongo where he promised to donate diesel; that he for the first time heard in court

that he had allegedly stolen fuel to be used in exchange of weapons in order to

secede the Caprivi; that he does not know Matheus Lutambo; that he did not sign for

three drums of fuel on Muyongo’s account; that he never knew John Samboma; that

he did not know Richwell Matengu; that he knew Richard Mundia since Mundia was

employed by the Ministry of Education as a driver; that he was never in the presence

of Richard Mundia when six drums had been filled up with fuel; that he never knew

Geoffrey Mwilima; that he never attended a meeting addressed by Geoffrey Mwilima;

that he never was a member of the UDP or the DTA and had never attended a

meeting at the DTA offices; that he did not know Thaddeus Ndala; that he heard for

the first time about the issue of secession in court but heard that people had fled to

Botswana, and denied having assisted a movement that attempted to secede the

Caprivi Region from Namibia by violent means.

[285] During cross-examination he testified that he was not aware of meetings

being held in Katima Mulilo except the instance when one of the workers asked

permission to attend a demonstration; that it was impossible to fill containers at

Zambezi Shell because ‘as a contractor there were regulations in place for them to

90 P. 36655.91 P. 36655.

94

on contract and they knew if something like that happened they will never be paid for

it’; that the government filling station was approximately 1.5km away from the

Government Garage; that the signature which is placed on the top left corner by

himself or his deputy was to indicate that a vehicle had a valid trip authority it was

not permission to fill up the vehicle with fuel; that this was done to stop the misuse of

Government vehicles; that he does not know why he is implicated in this case and

suspects that the police set him up.

[286] It was submitted by Mr July that the accused could not give a plausible

explanation why the witnesses had implicated him and that the explanation given

that the police fabricated evidence against him is ridiculous.

[287] In respect of the evidence of Kanzeka, it was submitted by Mr Kauta that it

was impossible for the accused to have authorized the filling of the drums because

of the quantity, that he is a single witness and that his evidence is not corroborated

by documentary evidence which should have been easily available to the State from

the owners of Shell Garage.

[288] This may be so, but in my view a more fundamental obstacle is that Kanzeka

was unable to identify the person he referred to as Norman Justus in court. The

significance of this failure in my view is the following: especially if one has regard to

the fact that the accused is the only white person on trial and the witness had a clear

view of the accused persons when asked to identify him, that if Kanzeka had known

the accused prior to the day he claimed the accused had filled up drums of diesel,

one would have expected of the witness to have easily identified him in court, and

his inability to do so raises the question whether the accused was indeed the person

at Shell Garage seen by this witness. His failure to identify Norman Justus

consequently raises a real possibility that the accused was not the person seen by

Kanzeka and that it would be unsafe to accept his evidence that the accused was at

Shell Garage on that particular day when drums of diesel were filled by the witness.

In addition no explanation was proffered for his failure to identify the accused person.

[289] The evidence of the accused person that it would have been impossible for

him to authorise the filling of drums of fuel by merely completing a government order

without a special permit is supported by the state witness Sauchini and this in turn

cast doubt on the veracity of the testimony that diesel was obtained in this manner

by the accused person.

95

[290] I find the explanation given by the accused in respect of his absence from

work after 2nd Aubust 1999 suspect and improbable. Nevertheless, it is trite law that

an accused person has no burden to prove his innocence, but that the State must

prove the commission of the offence beyond reasonable doubt, and where there is

doubt, the accused should get the benefit of the doubt. I have indicated earlier why I

am of the view that the evidence of Muzwaki cannot be relied upon.

[291] Having regard to the evidence of the State witness as well as the evidence of

the accused, I am not convinced that the State has succeeded in proving the

commission of the charges preferred against this accused person, beyond

reasonable doubt.

Muketwa Eustace Sizuka (accused no. 95)

[292] Bernard Kanzeka testified that he attended a secret meeting during November

1988 at the DTA office in Katima Mulilo which meeting was addressed by Geoffrey

Mwilima who informed the attendants that they needed to liberate the Caprivi region

from Namibia by fighting, by acquiring weapons, by going to Botswana, by collecting

money for the purpose of transporting persons to Botswana. This witness testified

that the accused was one of the persons who had attended this meeting and that he

had known the accused as a teacher at Sesheke Primary School.

[293] The witness testified that there were murmurs and it seemed that some of the

attendants were not happy with what Geoffrey Mwilima had informed them. There

was then a break. During the break people were divided into discussion groups.

After the break all of the attendants agreed with what Geoffrey Mwilima had informed

them. This witness testified that he knew that the attendants agreed because when

Geoffrey Mwilima told them that they would get good jobs and money, they laughed.

In my view laughing at what was said may equally indicate disbelief or disagreement.

In view of the unhappiness prior to the break the probabilities are that there was no

consensus and there is no evidence that the accused agreed with what was said by

Geoffrey Mwilima.

[294] This accused disagreed with the evidence of police officer Popyeinawa that

he had used his vehicle to transport people from Botswana. The accused testified

96

during cross-examination that he was arrested on 11 August 1999 at Sesheke Junior

Secondary School approximately 125-130km from Katima Mulilo; that the witness

Kanzeka is married to his ‘half sister’ Georgina Sinzuka; that he never attended a

secret meeting at the DTA offices; that it was a ‘manufactured story’; that he never

owned a motor vehicle during the year 1998; that his first vehicle he had bought in

the year 1999 (mid year); that exhibit ETY was a document given to him when he

registered his vehicle; that exhibit EUT was a special permit; received in respect of

his motor vehicle; that the registration number of motor vehicle was N 416 KM; that

his warning statement Exhibit EUU was taken on 21 August 1999 by warrant officer

Kanyetu. (It must be stated that the accused denied, in his warning statement, any

involvement in the attempt to secede the Caprivi region).

[295] During cross-examination the witness testified that during the years 1997-

1999 he was not a member of any political party; that he was aware political

meetings had been held in the area of the school; that he knew Geoffrey Mwilima

just a member of parliament; that he had never attended political meetings; that

during 1998/1999 his relationship with Bernard Kanzeka was good; that the police

used Kanzeka to implicate him ‘falsely’; that he did not transport anybody to

Botswana; that he heard about secession over the radio and that people were

flocking to Botswana; that he knew Muyongo as the President of the DTA and

member of parliament; that he did not have any intention of seceding the Caprivi

Region; that he regards the Caprivi as part of Namibia; that he became aware of his

rights when those were explained to him by warrant officer Kanyeta and that he was

entitled to legal aid, something which he did not fully understand; that he bought his

motor vehicle in Windhoek (at Chris Motors) on 14 June 1999, and that it was

registered in Katima Mulilo during July 1999.

[296] It was submitted by Mr July in argument that the mere presence of this

accused at this meeting indicate that he had conspired with those who had been

planning the secession. It was submitted that the overt act lies in the fact that the

accused attended a meeting where secession was discussed and that the accused

failed to report this to the authorities. I have a difficulty in concluding that by his

mere presence this accused conspired with others at the meeting. The probability is

not excluded that he could have been one of those who disagreed with what was

said.

97

[297] It was submitted by Mr Kauta that in view of the evidence that the accused

had only bought his motor vehicle during June 1999, this accused person could not

have transported people to Botswana. The evidence that he bought a motor vehicle

during June 1999 is uncontested.

[298] It was further submitted by Mr Kauta that there is further no evidence

presented by the State as alleged in the further particulars that the accused had

transported rebels during the night of 1 August 1999 from Makanga rebel base to

Waya-Waya in preparation for the attack on 2 August 1999.

[299] My ruling in respect of this accused in the application in terms of s. 174 of Act

51 of 1977 was the following:

‘The evidence against the accused does not prove any overt act, hostile intention or

common purpose. The only aspect which counts against the accused is that there is

evidence that the accused having attended the meeting addressed by Geoffrey Mwilima

and having regard to the information which had been conveyed to the attendants (i.e. the

intended secession of the Caprivi Region from the rest of Namibia by violence) that accused

failed to report such information to the authorities’.

[300] The criticism against the testimony of this accused by Mr July was that this

accused could provide no plausible explanation why Kanzeka had implicated him by

testifying that he had attended a meeting addressed by Geoffrey Mwilima. It must

however be pointed out that the accused denied ever having attended such a

meeting and he was not in my view discredited as a witness and there is no reason

why this court should reject his evidence regarding the issue of his motor vehicle and

that he never attended such a meeting.

[301] Mr July in his reply impliedly conceded that there was no evidence against the

accused that he committed the crime of high treason, by submitting that the evidence

against this accused proves beyond reasonable doubt that the crime of sedition

(count 2) was committed by this accused. I am not convinced that this is indeed the

case or that the evidence presented shows beyond reasonable doubt that the

accused had committed any of the other charges preferred against him.

98

Mateus Muyandulwa Sasele (accused no. 100)

[302] Christopher Siboli testified that the accused attended a meeting in 1997 at the

house of Mishake Muyongo where the donation of money and fire-arms were

discussed. According to this witness all those present were in favour of obtaining

fire-arms. This witness testified that the CLA and “Kopano ya Tou’ was one and the

same army, a ‘hidden private army’. The witness testified that the accused recruited

people to join the CLA. The witness identified the accused in court as being a

member of the CLA. The witness further testified that he himself also joined the

CLA.

[303] Bernard Kanzeka testified that this accused attended a meeting during

November 1998 addressed by Geoffrey Mwilima in which the secession of the

Caprivi region by violent means was discussed. Kanzeka testified that the accused

and Geoffrey Mwilima said at this meeting that those individuals who have transport

should assist to transport people to Botswana92. Kanzeka identified the accused in

court. Oscar Mwisepi testified that the accused used to receive persons who had

returned from Botswana, that the accused supported the idea of seceding the Caprivi

Region and that the accused had offered to transport people into Botswana. The

reception of persons from Botswana appears to be based on ‘rumours’. This

evidence is thus inadmissible. This witness identified the accused in court.

[304] The witness Innocent Falali Maholo testified that the accused was present at

Cinzimane on 18 April 1999 where the inauguration of the new chief of the Mafwe

tribe was to take place and that the accused was part of a group of person who had

opposed the inauguration. The accused was identified as a person who had been at

the inauguration. It was submitted by Mr July that those individuals who opposed the

inauguration of the new chief associated themselves with the former chief and what

he stood for. It was submitted that the accused having participated in the disruption

of the inauguration had committed the crime of sedition.

[305] The accused testified that he was arrested on 5 August 1999 at his house;

that at that stage he was unemployed; that he was discharged from the Police Force

on 8 April 1999; that he was previously employed at Katima Mulilo Police station

92 P. 5552.

99

since 1990; that prior to this he had been employed by SWAFT (701 Battlaion

Mpacha Base); that he does not know Christopher Siboli; that he never attended a

political meeting; that he did not know Oscar Mwisepi; that he did not promise to

transport persons to Botswana; that he was suspended on 28 April 1999 before he

was discharged; that he knew the police officer Popyeinawa; that he knew police

officer Evans Simasiku; that after he had been suspended he had never returned to

his office at the police station; that he received a letter of transfer from the Inspector-

General dated 2 February 1999, transferring him to Ruacana; that he was

suspended because of an allegation of theft of money out of their safe; and was

charged with theft in court; that he knows Bernard Kanzeka as a petrol attendant at

Zambezi Shell Filling Station; that he knows Geoffrey Mwilima as a ‘distant cousin’;

that he did not attend a DTA meeting during November 1998 addressed by Geoffrey

Mwilima; that he knows one Innocent Mahoto since they live in the same area and

that he knew police officer Haipa.

[306] During cross-examination he testified that the held the rank of constable for 9

years; that he first worked in the charge-office and thereafter as a storeman; that he

knew about his constitutional rights when he was arrested; that a warning statement

was taken from him on 22 August 1999 by police officer Kanyetu; that on 6 August

1999 he was taken from his cell, was blind folded, taken to the Regional

Commander’s office where he was ‘beaten to death’; that on 22 August 1999 when

his warning statement was taken he was not assaulted, only threatened that should

he not sign the statement he would be sent back to the ‘group of police officers who

were assaulting people’; that he was not given a choice whether he wanted to make

a statement or answer questions; that Kanyeta just completed the form and asked

him to sign it; that he appeared in court on 23 August 1999 and conceded that the

magistrate could have explained to him his entitlement to legal aid; that he cannot

dispute that meetings of Kopana ya tou were held; that during his suspension he

stayed at home and did not generate any income expect the salary the received; that

in the letter of dismissal it was stated that he was part of on group of ‘troublemakers’;

that they influenced people to leave Caprivi, and transported people to Botswana;

that he came to know about the secessionist movement during 1998 when 92

persons went to Botswana; that he did not belong to any political party, but that he

supported the DTA but stopped this support when he joined the police force in 1990;

that he knew that the UDP party joined the DTA around 1987; that he was never

100

‘affiliated’ to the UDP party; that he did not know about the objectives of the UDP

party; that he did not know the party well, ‘just heard’ that there was such a party in

Katima Mulilo.

[307] During cross-examination Mr January referred the accused to his bail

application (Exhibit F1) on 20 September 1999 during in which he was legally

represented) where the prosecutor Mr Kazongwizi had asked him whether he

belonged to a political party to which the accused answered: ‘Yes I am in DTA’ and

‘that is the political organisation I am belonging to because I even bought a

membership card’. This was contrasted with his testimony in court that he did not

belong to any political party but had only supported the DTA prior to his appointment

as police officer in 1990. This witness conceded that there was a contradiction and

testified that the truth was what he had said in court. This implies that he was

untruthful when he stated under oath during the bail application that he was a

member of the DTA. The question one would ask is whether there was any incentive

during the bail application to be untruthful. In my view there was none. The accused

now wants this court to accept that his testimony on this point should be accepted as

the truth. The difficulty with this expectation is that there is no explanation at all why

he gave false testimony during the bail application.

[308] The accused was also confronted with the contradiction (to which he

conceded) that during the bail application he had informed the court that he had

been discharged because of the issue of ‘transfers’, but in his testimony in court he

gave a different reasons namely that he together with others had been accused of

being troublemakers. The accused explained this contradiction by stating that he

never had time to study the letters (from the Inspector-General) well. This is an

implausible explanation in view of his testimony that he had received that letter

during February 1999 whilst the bail application was only heard during September

1999.

[309] The accused further conceded that the reason given for his dismissal, from

the Police Force during the bail application was because he refused the transfer93 (to

Ruacana), but in reply to the very next question retracted the previous concession

and stated that the police used his refusal to be transferred, ‘to cover their side’.

93 P. 36785

101

[310] The accused was referred to his testimony in the bail application where he in

reply to a question stated that he knew the UDP party ‘very well’, this in contrast with

his evidence in this Court that he did not know the UDP party well but had just heard

that there was such a party in Katima Mulilo. When the accused was asked for an

explanation he stated: ‘No comment, My Lord.’94

[311] The attention of the accused was drawn to a further contradiction. The

accused was asked in this Court when he became aware of the CLA and he replied

that on 6th August 1999 he heard about it from Deputy Commission Nghifindeka and

stated that prior to that date he had never heard about the CLA – not on the radio

and not in the printed media. The accused was referred to Exhibit F1 (page 21)

when asked about the CLA he replied that he only came to know about it ‘this year’

(i.e. 1999) about the military wing when he heard about it on the radio. The accused

could provide no explanation at all for this contradiction except to repeat that he

heard about the CLA over the radio. The reply of the accused why Siboli and

Mwisepi would implicate him in the crime of high treason this accused simply replied:

‘Fabrications’. The accused further during cross-examination stated that he is not in

support of secceding the Caprivi Region.

[312] The evidence of Oscar Mwisepi, Christopher Siboli and Bernard Kanzeka in

respect of the involvement of the accused in the secession movement was never

challenged or disputed during cross-examination. The cross-examination focused on

efforts to discredit the witnesses. Even though the evidence of the state witness are

not above criticism (for example the testimony of Kanzeka about a meeting held in

December 1998 addressed by Muyongo), the evidence of these witnesses in respect

of the involvement of the accused in the secession movement stands, except for his

blanket denial, uncontroverted.

[313] The explanation by the accused as to why the state witnesses had implicated

him is pure speculation and should be disregarded.

[314] The accused was an untruthful witness and tried, unsuccessfully in my view,

to present himself as an apolitical police officer, and a person who was not in the

94 P. 36790

102

least interest or involved in local politics. His denial of any involvement cannot be

accepted, in view of the uncontested evidence to the contrary, as reasonably

possible true and is accordingly rejected.

Gerson Luka Luka (accused no. 101)

[315] Bernard Kanzeka identified this accused as one of those who had attended

the secret meeting at the DTA offices during November 1998 where Geoffrey

Mwilima addressed the attendants on the issue of secession, donation of money and

that people needed to go to Botswana in order to liberate Caprivi from Namibia. This

witness testified that Geoffrey Mwilima informed those in attendance that the Caprivi

Region should be cut (from the rest of Namibia) by fighting the Government of

Namibia with weapons which were to be acquired in Angola.

[316] It was put in cross-examination inter alia that certain persons95 will say that

they never attended a ‘lecture’ of Muyongo during December 1998 neither had they

attended the ‘lecture’ of Geoffrey Mwilima. This witness disagreed. It was however

never put to this witness that the accused person never attended the meeting

addressed by Geoffrey Mwilima.

[317] Richwell Nunsa Musililo testified about a meeting at Linyati Khuta on 20

March 1999 where the attendants were informed of the inauguration of a new chief

and that one Gibson Luka was present who had opposed the inauguration. This

witness was not given an opportunity to identify the person who had allegedly

opposed the inauguration.

[318] Innocent Falali Mahoto testified and identified the accused person as one of

the persons who on 18 April 1999 at Chinzimane, opposed the inauguration of the

new chief for the Mafwe tribe.

[319] Linus Kafuna Manga testified that the accused was an ‘in-law’ of his

grandfather and that the accused had been involved during two discussions relating

to the inauguration of the new chief for the Mafwe tribe at Chinchimane. During the

first discussion the accused disagreed with the election of the new chief but was of

the view rather to wait for Chief Mamili to return from Botswana because Caprivi had

95 P. 6298

103

to be seceded from Namibia. During the second discussion the accused agreed to

the inauguration of the new chief. This witness testified that during the inauguration

he only saw the accused at the end of the ceremony when he walked past him as he

was getting into his car and left.

[320] During cross-examination the witness conceded that in his statement to the

police regarding the events of the inauguration he stated that the accused’s reason

for saying that the chief should not be replaced was not clear to him and that the sole

reason was that they had to wait for the chief who went to Botswana and that there

was no nefarious reason or any other reason. This concession neutralizes the

testimony of this witness that the accused was of the view that the Caprivi region had

to be seceded from the rest of Namibia.

[321] It was submitted by Mr Kauta that on Linus Manga’s version there is an

attempt to implicate the accused and simultaneously to extrapolate him from

secession.

[322] The accused testified that he was arrested on 6 August 1999 at Katima

Teachers Resource Centre by sergeant Patrick Liswani. The accused hold a BA

degree from UNAM, a BA Honours degree from UNISA, and a Masters degree from

Central Michigan University in the USA; that he is related to the Mamili royal family,

related to the current chief George Simasiku Mamili; that he was not opposed to the

inauguration of the current chief because firstly, he is a member of the royal family,

and secondly, the current chief is his father-in-law; that he was not a member of the

UDP neither of the DTA; that he is a member of the SWAPO party and that his

membership card was confiscated by sergeant Simasiku when his house was

searched; that when he was arrested sergeant Liswani alluded to the fact that he

had bought food for the rebels; that on 21 August 199 warrant officer Bonifasius

Kanyetu took his warning statement; that he was questioned on the events during

the period 30 June 1999 until 2 August 1999; as well as what had happened on 18

April 1999; that he went to the inauguration of the new chief and was not opposed to

his inauguration; that he was there for about an hour when the police ordered all

people from Linyanti to leave the place; that he never violently opposed the

inauguration; that he did not provide food to the rebels at Libyu-Libyu since he was

not even aware where the rebels were; that he owned a Toyota Hilux bakkie with

104

registration number N 8866 KM; that on 1st August 1999 at around 07h00 he left

Katima Mulilo with a GRN vehicle to Okahandja where he attended an ‘educational

workshop’ until the Wednesday; that he used to spend a lot of time in community

development projects, was the chairperson of Linyanti Development Committee

whose main objective was to drill for boreholes; that he knew Bernard Kanzeka since

he worked at Zambezi Shell Filling Station as a petrol attendant; that the meeting

testified about Kanzeka was fiction because there was no way that he could have

been invited to that meeting in view of the mutual distrust between DTA members

and SWAPO members; that even Geoffrey Mwilima had known of his political

affiliation and Geoffrey Mwilima would not have invited him to that meeting if it ever

took place; that there are three accused persons who also belonged to the SWAPO

Party, namely Bernard Mucheka, Allen Sameja and Gabriel Mwilima; that he knew

the witness Manga as his brother-in-law; that he did not know why Manga had failed

to identify him in Court; that Manga had testified that he was not feeling well, had

dizziness, that he was too old and that a long time had lapsed; that one Ezekiel

Kambende Simasiku is his father-in-law and that he had never in the presence of his

father-in-law and Linus Manga discussed the issue of secession; that one Brian

Lubele from Chinchimane is his brother-in-law; that Innconent Mahoto is a distant

uncle; that one Sydney Mutwaezi Mwabi comes from the same village namely

Linyanti; and that Richwell Nunso Musiliso was one of the Indunas at the traditional

Khuta.

[323] During cross-examination he admitted having attended the meeting held at

the Khuta on 20 March 1999; that he had heard about people being in opposition to

the inauguration for the new chief on 18 April 1999; that it was normal, a cultural

issue for people to oppose the inauguration of a chief and that it had happened in the

past; that Boniface Mamili is his uncle; that he had no personal knowledge why the

former chief (Boniface) had left the country or how he had left; he denied that he first

opposed the inauguration (as testified by Manga) and subsequently supported it; that

he never gave any instructions to Mr Kauta that he disassociated himself from

‘anything that was discussed’; that he was never in favour of secession; that he first

heard about secession when the ‘so called group of 92’ fled to Botswana at the end

of October 1998; that he did not discuss the issue of secession with anybody; that

Victor Falali was his cousin; and that he gave his warning statement (Exhibit EUS)

105

freely and voluntarily. In his warning statement the accused denied any knowledge

of the ‘secession issue’

[324] It was submitted in the heads of argument by Mr July that the accused’s

suggestion that Linus Manga testified against him because of problems they had

previously is vague, not plausible and was never put to Manga when he testified.

However, even if this is accepted, it is apparent that Manga failed to identify the

accused in court. As indicated earlier this witness during cross-examination made a

concession which had the effect of effectively neutralizing any incriminating

testimony that the accused had been a supporter (as contended by Mr July) of the

attempt to secede the Caprivi Region. It was also submitted by Mr July that the

accused was very evasive when questioned why the former chief had left Namibia. I

do not agree. However even if it is accepted, for the sake of argument, to be so, this

does not indicate any complicity or hostile intention.

[325] It was submitted by Mr Kauta that in view of the finding of this Court during the

s. 174 application where this Court did not rule on the credibility of the witness

Manga, that on the version of Manga he ‘inculpates’ and ‘exculpates’ the accused

person and that he inferentially argued that the exculpation meant disassociation. It

was a legal argument it was submitted (and correctly so) and that the accused

person never testified that he disassociated himself from treasonous activities, but

denied his involvement.

[326] Mr Kauta submitted that Kanzeka was a single witness and that it is highly

unlikely that the accused who is a member of SWAPO would have been invited to a

DTA meeting. This submission is not without merit.

[327] During my ruling in the application in terms of s. 174 this Court inter alia held

that (with reference to the testimony of Kanzena) the accused had been aware of

plans to secede the Caprivi from Namibia by violent means but never reported such

information to the relevant authorities. At that stage the version of the accused was

not before Court. I must state that the accused was not shown during cross-

examination as an untruthful witness. If one thus have regard to the probabilities, of

him attending the meeting in November 1998 these in my view favour the version

presented by the accused person. I conclude therefore that the State had failed to

106

discharge its onus of proving the commission of the offences preferred against this

accused person beyond reasonable doubt.

Clients of Mr McNally .

Robert Lifasi Chelezo (accused no. 97)

[328] Elvis Kanungu Elijah testified that Robert Cheleze and Allen Sameja came to

his village and told him that he should go to Botswana in order to separate the

Caprivi from Namibia. This witness when asked, was unable to identify Robert

Chelezo or Allen Sameja in court.

[329] Martin Matau testified that Robert Chelezo registered people who in 1988 at

Mahunga village wanted to go to Botswana. The reason according to his witness for

going to Botswana was ‘to hold the guns in order for us to come and cut Caprivi’.

Chrispin Samahili and two other individuals, according to this witness, campaigned

and told persons that they should go. This witness failed to identify Robert Chelezo

or any other person in court.

[330] In my view the failure by these witnesses to identify the accused person

amounts to a failure to prove beyond reasonable doubt that it was this specific

accused person who had made the utterances referred to, and this failure obviates

the need of the accused person to present evidence in rebuttal thereof.

[331] John Sinvula testified that one Richard Cheleza told him to go to Botswana,

and to follow others, in order to cut the region of Caprivi from the rest of Namibia.

This incident occurred during November 1998 at the village of the witness. On 1st

December 1998 during the night this witness testified that the departed for Botswana

together with other individuals. They crossed the Linyanti river into Botswana and

went to Dukwe (refugee camp). The witness testified that he returned to Namibia

during the year 1999 by way of repatriation. The witness further testified that before

2 August 1999 he (i.e. this witness) was in the company of one David Matau and the

mother of Matau when they met Robert Chelezo who informed them that they should

not report to the police the fact that he had recruited them, and should they report

him, he would kill them. This witness correctly identified Robert Chelezo as accused

no. 97.

107

[332] This court during the ruling in the s. 174 application stated that he only

evidence presented by the State which should be considered by this Court was the

testimony of the witness John Sinvula.

[333] This accused testified that he was arrested on 5 th August 1999 and that he

was employed at the stage by the Ministry of Home Affairs where his duty was to

issue identity documents in Katima Mulilo. On 2nd August 1999 he was on his way to

work when he encountered police officers who told him to return home because of

the situation which prevailed at that stage.

[334] The accused testified with reference to the testimony of John Sinvula that the

accused recruited him to go to Botswana that his could not have happened since on

the day of the alleged recruitment (1st December 1998) he was on duty in Katima

Mulilo and that the witness used to stay at Maunga village, at a distance of 135km

from Katima Mulilo.

[335] The accused further denied having threatened to kill the witness after the

witness had returned from Botswana since this witness, John Sinvula, had testified

that he went to Botswana on 1st December 1998 and that he stayed in Dukwe for a

year. Thus by the time the witness had returned he had already been arrested and

was in prison.

[336] This witness Sinvula indeed testified96 that he stayed in Dukwe for one year

and that he had returned during 1999 but was unable to state which month he had

returned. He testified that he had this conversation with the accused prior to the

attack on 2 August 1999.97 This apparent anomaly was not clarified during his

testimony-in-chief. Sinvula testified that he accused is his uncle.

[337] The witness, Sinvula, during cross-examination by Dr. Sithole-Mwenda

testified that before he had met the accused person his friend had informed him that

they had registered and they encouraged him to register and to go to Botswana; that

he went to Botswana during November 1998 and stayed there for 9 months 98; that he

96 P. 21019.97 P. 21021.98 P. 21033.

108

did not know which month he had returned from Botswana; that he cannot read; that

when he arrived in Dukwe there were no meetings; that the meetings started on

week after his arrival.

[338] The witness was referred to his witness statement in which he stated that

there was no meeting at Dukwe and that he was repatriated in June 1999. This

witness further confirmed that he stayed in Dukwe for one year.99 This witness was

reminded that he had testified in his evidence-in-chief that he had reported to David

Mutua that the accused had threatened to kill him and stated that David was not

present when he was threatened by the accused person. When the witness was

reminded that his evidence-in-chief was that David and the mother of David were

present when he was allegedly threatened by the accused he confirmed this. The

witness later explained when the accused first came to him and informed him not to

report him. David Matau was present and the accused came for a second time to

him when the mother of David was present and then he left and reported it to David.

The witness confirmed that he also reported the incident to the police but nothing

happened.

[339] It was further put to this witness that the accused will say that he did not

recruit him to go to Botswana for the liberation of the Caprivi to which the witness

replied: ‘No’. It was further put to the witness that he went on his own to Botswana

because he heard over the radio that people were going to Botswana and that he

was interested in education and employment to which this witness replied: ‘Yes. I

was happy when I heard that people they are getting employment’. It was also put to

the witness that the accused would testify that he did not threaten him because there

was no need for that, to which the witness confirmed that the accused had

threatened him. There was no re-examination of this witness.

[340] This Court stated in its ruling in the s. 174 application that the only evidence

against this accused which indicated that he had knowledge regarding the looming

secession of the Caprivi Region was the testimony of Sinvula that the accused had

informed him that he should go to Botswana in order to cut the Caprivi from Namibia.

This Court made no credibility findings in respect of the witness Sinvula at that stage.

99 P. 21042.

109

The accused has testified denying any involvement in the attempt to secede the

Caprivi from Namibia.

[341] It was submitted on behalf of the State by Mr July in their heads of argument

that the accused mindful of what this Court had found in the s. 174 application

judgment, namely that the accused failed to communicate to the authorities his

knowledge of treasonous activities, tailored his evidence by stating that he never

heard anything about secession and wasn’t aware of it and that the accused testified

that he only heard about it in 1998 when it was broadcasted. It was submitted that

the accused contradicted himself in this regard.

[342] It was further submitted that the accused further contradicted himself by

stating that he had knowledge about the secession movement because it was on the

news and everybody knew or heard about it. The credibility of this accused was

further questioned in the heads of argument100 with reference inter alia to the

testimony of the witness Martin Matau and the explanation of the accused that the

witness John Sinvula identified him ‘because he knows that I am his uncle not that I

committed a crime’. In view of the fact that Martin Matau did not identify the accused

person in court I need not comment on his testimony. In respect of the explanation

given as to why John Sinvula would implicate him, I must say that this explanation is

implausible.

[343] Nevertheless, it was submitted by Mr McNally that the evidence of John

Sinvula was ‘not credible in every respect’. This Court was referred to the testimony

of John Sinvula in cross-examination when he first stated that there were no

meetings held in Dukwe but subsequently stated that meetings were held and when

confronted with his witness statement retracted his earlier statement and confirmed

that there were no meetings held at Dukwe. It was submitted that the witness went

on his own and was not influenced by accused no. 97 to go to Dukwe. This in my

view is only partially correct. The fact that this witness was influenced by his peers

to go to Dukwe prior to him meeting this accused person does not exclude the

possibility that he could have had a conversation with the accused person. The

question is whether this Court may safely accept the evidence of this witness in

respect of what transpired between himself and accused no. 97.

100 P. 379-383 Heads of argument of State.

110

[344] This Court was referred to case law where the evidence of a single witness

was considered. It was stated101 that a court may convict on the evidence of a single

witness only where such evidence is clear and satisfactory in every material respect.

The court must be convinced beyond reasonable doubt. This court was in this

regard referred to S v Noble102 where Maritz J stated the following:

‘The weight of authority suggests, correctly so in our view, that it is a common sense

guide enumerating some of the considerations applicable when assessing the reliability and

credibility of the evidence of a single witness with the totality of the evidence adduced in the

trial. Whether a judicial officer considers the evidence of a single witness with reference to

that salutary guide or not, he or she must approach such evidence with caution. He or she

should not merely pay lip service to the existence of a cautionary rule in such cases, but it

should be apparent from his or her reasoning, that he or she, mindful of the inherent dangers

of such evidence, treated it with circumspection’.

[345] In addition to the contradiction referred to, the following aspect of the witness

John Sinvula is a cause for concern: He testified that he left for Botswana on 1 st

December 1998 and returned a year later to Namibia. If this testimony is accepted

then it follows that he could not have had a conversation with the accused who had

been arrested on 5 August 1999. The witness agreed with counsel in cross-

examination that he remained for 9 months in Botswana. The witness also testified

with reference to his witness statement that he returned to Namibia during June

1999. This witness during cross-examination was unable to state which month he

had returned to Namibia, but again stated that he stayed in Dukwe for one year.103 It

must further be stated that the testimony of the witness that he was threatened by

the accused prior to 2 August 1999 was a response to a leading question.104 In view

of his conflicting evidence as to when he had returned from Botswana, and his

testimony that he does not know in which month he returned to Namibia, this Court

cannot accept his testimony that the accused had threatened to kill him.

[346] Another aspect which was also not satisfactory relates to whom had been

present when the accused allegedly threatened him. The witness first sated that

101 R v Mokoena 1932 OPD 79; R V Mokoena 1956 (3) SA 81 (A); S v Weber 1971 (3) SA 754 (A).102 2002 NR 67 at 71.103 P. 21042.104 P. 21021.

111

David Matua and his mother were present, then he testified that David Matua was

not present, and later he referred apparently to two incidents. This uncertainty was

not clarified during re-examination. The evidence of this witness must be approached

with caution. The evidence is not clear and satisfactory in every material respect.

[347] It must be borne in mind, even in the instance where the testimony of an

accused person is not above criticism, that the State has the burden to prove the

commission of a crime beyond reasonable doubt. In this particular instance in view

of my finding that the evidence of the witness John Sinvula cannot be relied upon, it

follows that there is no evidence that the accused had knowledge of the secession

movement at a stage one would have expected of a law abiding citizen to have

reported it to the authorities. I am therefore of the view that the State failed to prove

the commission of all the charges preferred against the accused beyond reasonable

doubt.

Berhard Maungolo Jojo (Accused no. 98)

[348] Oscar Mwisepi testified and identified the accused as a person who frequently

attended meetings of Muyongo where the issue of secession was discussed.105 This

witness stated that he was not in a position to testify anything regarding the altitude

of the accused person in respect of the issue of secession. The witness however

testified that the accused had offered him entirely ‘in terms of attacking or fighting

against the Subias including those who would be stumbling blocks to our plan or our

idea’. The witness testified that he knows his because he was involved with the

accused chasing Subias around. The witness testified that the accused was the

driver of the Governor of the Region.

[349] During cross-examination, the witness testified that he attended three

meetings namely a meeting at Liselo in 1998, a second meeting at Ngwezi Hall in

1998 and a third meeting at the DTA office. This witness confirmed that he left for

Dukwe on 5 January 1999 and that after his return to Namibia he attended two

meetings at the house of Gabriel Mwilima. The witness confirmed that these were all

the meetings he had attended. The witness was referred to his witness statement

(dated 17 January 2001) in which he referred to a meeting he had attended at the

house of Eugene Ngalaule. The witness conceded that he did not testify about this

105 P.778. The meetings referred to were the meetings that used to be held at Ngwezi and at Liselo.

112

meeting. This witness was confronted with his testimony-in-chief where he testified

that he had been informed by many people including Gabriel Mwilima and Devil

Kavo Mowa that the shootings would take place on 1st August 1999 whereas during

cross-examination he testified that Gabriel Mwilima did not inform him about the

specific date when the attack would take place.

[350] The witness testified that it was ‘at the end of the month of July’ that he was

informed that the attack would take place on 1st August 1999. This witness also

testified that he learnt about the attack on 1st August 1999 from Devil Kavo Mowa on

their way to Liselo. It was pointed out that this could not be correct since his

testimony was that he had been informed about the attack prior to 1st August 1999.

The witness was further confronted that he had testified in his evidence-in-chief that

Eugene Ngalaule (accused 64) registered persons during the first meeting at Liselo

whereas in his statement of March 2003 he mentioned two other persons, inter alia,

Kenneth Sitali.

[351] Mr July in reply stated that the evidence of Oscar Mwisepi was of neutral

nature and submitted that his evidence did not incriminate the accused in respect of

any of the charges and hence the State does not rely on his statement in respect of

this accused.

[352] Christopher Siboli testified and pointed the accused out as a member of

‘Kopano yo tou’ who had attended a meeting during 1991 and that the accused

looked for people to join the CLA. The witness testified that the accused transported

persons including himself to go to Botswana. According to this witness the accused

had transported him to a certain river where he (ie the witness) crossed the river into

Botswana and the accused returned. The witness testified that the accused had

known the reason why he had to go to Botswana as the ‘Caprivi idea’ was there for a

long time in Caprivi. This witness further testified that the accused was present at the

new house of Muyongo in 1997 where the issue of secession was discussed.

[353] It was put during cross examination that the accused would testify that he

never attended a secret meeting at Muyongo’s house and that he (accused person)

was against seceding the Caprivi Region. The witness disagreed. It was put to the

witness that the accused just followed orders when he took them to Lizauli, and that

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the accused did not know why he had to take them there. The witness disagreed and

testified that the accused took them to the ‘habour’. It was put that even if the

accused had taken them to the ‘habour’ he did not know why they were going to

Botswana. The witness disagreed.

[354] Bernhard Kanzeka testified that the accused attended a meeting during

November 1998 at the DTA office addressed by Geoffrey Mwilima where the issue of

secession was discussed, where money was donated and where people were to be

transported to Botswana, where Geoffrey Mwilima said that the cutting would take

place by fighting and how weapons would be acquired. The accused was identified

as one of the attendants. It was put to this witness during cross-examination that the

accused would testify that he never attended a meeting at the DTA offices during

November 1998. The witness disagreed. It was also put to the witness that after

October 1998 no meeting was held at the DTA offices. The witness disagreed.

[355] Kingsley Simwanza Kalundu testified that the accused person during the

years 1998 and 1999 recruited him to go to Botswana in order to receive military

training and to return to fight the nation of Namibia using fire-arms and to liberate the

Caprivi Region. At that stage, he stayed at the house of the accused person. During

the year 1999 himself together with 21 other persons, including George Oscar

Maungulo the son of the accused, started their journey from Katima Mulilo to

Botswana. This witness testified that they slept that evening at the house of one

Berhard Mangaulo and the next day they were ferried across the river with a dagout

canoe into Botswana. This witness testified that he returned to Namibia on 24 June

1999 through the process of repatriation and went to stay at the house of the

accused person where the accused asked him why he came back.

[356] The evening after his return from Botswana during July he saw two vehicles

departed from the house of the accused. This witness testified that he was together

with the son of the accused at that stage. They were then informed by the accused

that the people travelling in those vehicles were ‘Steve Kwala and the group’ and

that they have fire-arms and hand grenades. On 2 August 1999 he was together with

the accused and his son Oscar in Katima Mulilo when he heard the sound of gunfire.

The accused then said: ‘those are our people who have started shooting.’ The

accused was identified by this witness in court. This witness testified that after his

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repatriation, he was together with the son of the accused who told them that they

should go in the bush and join others who were already there in the bush.

[357] During cross-examination, it was put to the witness that the accused will deny

that he stated that Steve Kwala and the group had AK 47s and hand grenades. The

witness persisted that was the position. It was put to the witness that accused will

say that Kwala was never at his house. The witness said it was a lie. It was put to the

witness hypothetically that if an ordinary Namibian would hear gunfire and would say

‘that is from our men’ such a person could be referring to the Armed forces. The

witness replied that the accused made no reference to Armed forces and that he

meant the rebels.

[358] It was put to the witness that the accused denies influencing or recruiting him

to go to Botswana and to fight the Government of Namibia. The witness disagreed. It

was put to the witness that the accused denies telling them that there was an army in

existence in the bush or anywhere. The witness replied that the accused indeed said

that. It was put to this witness that the accused did not participate in any rebel

activities. The witness disagreed. It was also put to the witness that the accused

denies saying on the day of the shooting ‘those are our people’. The witness

persisted that it was said by the accused person.

[359] The witness testified that before he left for Botswana G3 and AK47 automatic

rifles were off loaded at the house of the accused person. The witness testified that

those two firearms ‘were supposed to be given’ to himself and the son of the

accused in order to go into the bush. The witness testified that one Oscar Rupalezu

(deceased) asked the accused why he could not give the weapons to ‘these two

young men’, ‘so that they can use them’. The accused accordingly to this witness

replied that they were fools and that was the reason they returned through

repatriation. The weapons were not given to them.

[360] The witness testified during cross-examination that Oscar Jojo (the son of the

accused) was a very good friend of his at that stage, one in whose company he was

most of the time. However subsequently, Oscar blamed him for the arrest of his

father. The witness testified that when the accused asked him why he came back he

replied that there was nothing going on in Botswana. The witness was referred to his

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statement in which it appears that he stated that he saw Oscar cleaning the weapons

and he agreed that was the case. The witness agreed that the accused was the

holder of licensed fire-arms namely, a 308 Bruno, a 7.65 mm pistol, a .22 rifle and a

shotgun. It was put to the witness that the son usually cleaned those fire-arms. The

witness responded that the fire-arms which had been off-loaded were automatic

rifles and that he knows the difference between an automatic rifle and a single shot-

rifle. The witness, in response to the hypothetical question put to him explained that

it could not have been the Armed forces because at that stage the police announced

‘through the loudspeakers’ that people should remain indoors.

[361] It was further put to this witness that he and Oscar were drunkards and that

there exists a possibility that he could have confused the licensed fire-arms with the

alleged G3 and AK47. The witness disagreed stating that when the weapons were

off loaded the accused had put it in the house where there was an ‘electricity light’. It

was put to this witness that he was falsely implicating the accused who had

censured him for drinking too much and spoiling his son with alcohol. The witness

disagreed.

[362] A witness Martin Mutan testified about a hunting trip with one Bernard Jojo

during which certain issues were discussed regarding the secession of Caprivi

Region. The witness testified that during April 1999 he went with Bernhard Jojo and

Harrison Kwala on a hunting trip when Harrison asked him which side he was on:

‘are you Sifo or Mamili’. Before he could reply Bernhard Jojo said that he (ie Jojo)

was on the side of Sifo. Bernhard Jojo then said that Caprivi would be a cut from

Namibia. When he asked how it was going to be cut Bernhard Jojo replied that they

were just waiting for Kaka, the ‘Minister of Army’. The witness testified that he knew

Kaka was in the Police force. The witness testified that he was then ordered by

Bernhard Jojo to write 21 April 1999 on a tree since that would be the day of

independence. This witness explained that Sifo is the Chief of Mayeyi. This witness

was unable to identify Bernhard Jojo in court stating that he was seeing double.

During cross-examination it was put to this witness that the accused says that he

never had an argument with him about the liberation of the Caprivi. The witness

insisted that they had such a conversation.

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[363] Bernhard Maungula Jojo testified on 12 March 2013 stating that he was 72

years old; that he was arrested on 5 August 1999; that he had been employed as a

driver at ‘ Local Government and Housing; that he is a member of the DTA party;

that he never influenced anyone to go to Botswana; that he never provided firearms

to rebels and never encouraged them to join rebels in the bush; that he never

transported rebels to Botswana; that on 2 November 1998 the Governor John

Mabuku requested him to pick him up at the village the next morning; that the next

morning on his way to the village he encountered members of the police; that from

the village they returned to Katima Mulilo police station where the police wanted to

know where the Governor was, and that he could not explain; that the officer

Nghifindaka instructed the police officers that he (accused) would no longer drive his

vehicle and the vehicle was taken from him; that he never transported Siboli to

Lizauli since he had no motor vehicle and that Siboli testified that he had left for

Botswana on 5 November 1998; that he never recruited Kingsley Kalunda to go to

Botswana for military training since it is against his culture to send someone else’s

son to a ‘far away place’; that he never told Kalunda that he should have stayed in

Botswana; that he did not see a G3 and a AK47 rifles being off-loaded at his house

and does not know how to operate those fire-arms; that he never attended a meeting

in November 1998 at the DTA offices; that during 1998 no political meeting took

place in Katima Mulilo in particular DTA meetings; that he agreed that one state

witness, Innocent Mahotam could have seen him at Chinchimane since the culture is

that if one is called by the traditional court one must attend. It was also put to the

accused that he had told witness Kalunda to go to Angola. The accused denied this.

However the record reflects that it was not the accused who told Kalunda to go to

Angola but someone else.

[364] It was submitted by Mr McNally that Siboli contradicted himself several times

during his evidence-in-chief namely that he first said they went to Dukwe to secede

the Caprivi, then because they were promised good things, then because they would

receive houses upon their return. I doubt whether these replies can be regarded as

contradictions since these may all be reasons why the witness left for Botswana, that

they were supplementary reasons. Mr McNally also submitted that Siboli gave

ambiguous answers during cross-examination. It was also submitted that there is no

evidence, if it is true, that the accused attended a particular meeting that he actively

participated in the decision making.

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[365] Mr McNally further submitted in respect of the meeting in 1998 addressed by

Geoffrey Mwilima that not a single question was directed by the prosecutor regarding

his alleged attendance of that meeting, that the accused categorically denied having

attended that meeting, and correctly submits that, his evidence stands

uncontradicted. Mr McNally submitted in his heads of arguments that it was put to

the accused that Kingsley Kalunda actually saw weapons being off-loaded at his

house and referred to the record106 where it was stated that the witness never saw

the fire-arms. This should be put in perspective. The witness Kalunda never

conceded that he did not see weapons being off-loaded at the house of the accused.

The part of the record relied on by Mr McNally referred to a different incident

involving ‘Steven Kwala’ and his group’ where Kalunda testified that he did not see

the AK47 and the hand grenades mentioned by the accused person to the witness

and his son, Oscar.

[366] During cross-examination the accused testified that he knows Martin Mutau

since Mutau stayed at his house when he was in the army and that Mutau is related

to him. The accused testified that he knows Kingsley Kalunda who used to stay at

his house and that the brother of Kalunda was a police officer and his neighbour.

The accused denies discussing certain issues with Mutau and Kalonda; denies that a

G3 and an AK47 were off-loaded at his house; that he knew nothing about secession

and just came to learn about it in court. When asked when he first became aware of

the issue of secession, the accused replied that he had never heard about that issue.

He testified that he does not know Harrison Kwala. The accused was further

asked107whether he could recall a hunting trip where Mutau accompanied him and he

replied as follows: ‘ Yes my Lord I do recall. I almost forgot’.

[367] The next question asked was whether he could recall that on the hunting trip

he had a conversation with Mutau regarding a big tree. The accused replied that was

what Mutau testified about and added that he never went out on a hunting trip with

Mutau. This contradiction was brought to his attention by the court but the

explanation of this accused was ambivalent. The accused further testified that the

only ‘difference’ he had with the witness was that he had reprimanded the witness

106 P. 8915, line 10-12.107 P. 36966.

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about his beer drinking habit. The accused denies knowing the witness Siboli and

has never met him prior to this testimony in court.

[368] The accused was asked whether he ever transported people (a group of

people) that flocked from the villages to the Governor back to their places of origin

and the accused denied it. It was put to the accused, that it was put to Siboli by

counsel, that the accused had no choice but to take those people back when

requested by the Governor. The accused replied that he did not fully agree with it. It

was further put to the accused, that counsel had put it to Siboli, that the accused

acted on instructions of the Governor when he took Siboli to Lizauli in order to go to

Botswana. The accused replied that Siboli was lying.

[369] The point made by Mr January, and correctly so in my view, was that it was

never disputed or placed in issue that the accused took Siboli and others to Lizauli.

When Siboli replied that the accused not only took him to Lizauli but to the ‘harbour’

(ie the river), this was not disputed. What was disputed was that the accused had

known the reason why Siboli had left for Botswana.

[370] Regarding the issue of the hunting trip where Mutau had testified that one

Harrison Kwala had accompanied them, the accused denied knowing a person by

the name of Harrison Kwala. This was however never put to the witness Mutau,

namely, that Harrison Kwala is unknown to the accused. The reason why I am

considering this testimony of Mutau despite his inability to identify the accused in

court is the following: firstly, the accused never disputed that the witness knows him.

It is common cause that the witness stayed with the accused from time to time, and

secondly, the accused in cross-examination admitted that Mutau was with him on a

hunting trip. The fact that he immediately denied this negatively reflects on his

credibility as a witness.

[371] It was submitted on behalf of the State in their heads of argument that the

accused throughout cross-examination provided evasive answers. This submission

is not without merit. The accused during this testimony tried to convey an impression

that he had never heard about the issue of secession in his life. This is implausible.

The evidence of the witness Kingsley Kalunda has not been discredited, he was not

shown to be an unreliable witness. This witness testified that after the arrest of the

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accused, the witness visited him in detention in Katima Mulilo as well as in

Grootfontein in order to enquire about his welfare. This witness was an honest

witness and there is no reason why his evidence should be rejected. This witness

had no ulterior motive to incriminate the accused person and the explanation

according to the accused why this witness would implicate him is preposterous.

[372] The evidence of Siboli that the accused had transported him to a river where

he crossed into Botswana is supported by the instructions put to Siboli during cross-

examination. The evidence of the accused in respect of the evidence led against him

is a bare denial. The evidence of the accused was contradictory on material points,

evasive, highly unlikely, and stands to be rejected as false. I agree with the

submission by Mr McNally a large number of the further particulars provided by the

State were not supported by any evidence. Nevertheless, there is in my view

evidence beyond reasonable doubt which supports other particulars of claim. I am of

the view that the State succeeded in proving the required hostile intent, alternatively,

that the accused had known about treasonous activities and failed to alert the

authorities.

Victor Masiye Matengu (Accused no. 60)

[373] Oscar Mwisepi testified that the accused was one of the persons who was at

Dukwe refugee camp in Botswana and correctly identified the accused in court.

Christopher Lifasi Siboli testified that the accused was a member of the CLA and

correctly identified him in court. The witness Siboli testified that the accused

attended a meeting during the year 1992 and was willing to go to Angola for training

and the acquisition of weapons. According to this witness the accused attended a

meeting at the house of Mishake Muyongo during the year 1997 where the issue of

secession was discussed. This witness testified that he also joined the CLA and that

he recruited individuals to join the CLA. During a cross-examination it was put to this

witness that the accused will testify that he was not a recruiter at all. The witness

insisted that he was. It was put to the witness that the accused was neither an office

bearer in the UDP nor in the DTA. The witness insisted that he was. This witness

further conceded that the name of the accused does not appear in a witness

statement of him deposed to on 23 March 1999.

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[374] Albert Yabya Chalo testified that he was at Dukwe and returned trough

repatriation to Namibia at the end of June 1999. One day at the ‘crossroads’ he met

one Victor Matengu who asked him whether he was willing to assist those who were

going to attack. The witness was in a hurry and failed to ask Victor Matengu

anything. After this occasion he did not see Victor Matengu. The witness identified

Victor Matengu in court as accused no. 60. During cross-examination the witness

testified that he met Victor Matengu during June 1999. It was put to him that the

accused will tell this court that he (ie the accused) only returned to the Caprivi during

July 1999, that he reported himself to the police on 9 July 1999 and was promptly

detained. The witness replied inter alia ‘I can agree to that if that is how it transpired’.

[375] Michael Mashabi Nuwe was warned by this court in terms of the provisions of

s 204 of the Criminal Procedure Act 51 0f 1977. The witness testified that he was

employed by the SWATF from 1981 until 1989 as a ‘medic’. The witness testified

that in the beginning of October 1998 one Clautius Puteho came to his village with a

vehicle to pick him up for a DTA meeting in Katima Mulilo. Whilst in Katima Mulilo

one Thaddeus Ndala arrived there and informed them that Muyongo was going to

take care of the ‘foodstaff’ and that ‘they were of the idea to fight for Caprivi’. During

the night they left the DTA office towards Kongola. They stopped at Singalamwe.

The journey was to take them into Angola. They travelled in five vehicles to

Singalamwe. The group consisted of 64 individuals. The purpose for travelling to

Angola was to obtain weapons from UNITA as well as military training. The group

was led by John Samboma. The witness testified that Victor Masiye Matengu108 was

amongst the group who had gathered at Singalamwe. The witness testified that they

were together at Caprivi Training School. This witness was unable to identify Victor

Masiye Mutengu in court.

[376] Ovis Muleta Kwala testified that Victor Matengu came to his house during May

1999 in the company of one Elvis Puteho. According to this witness, Victor Matengu

informed him that he had escaped from Dukwe and wanted to report himself to the

police. This witness was unable to identify Victor Matengu or Elvis Puteho in court.

Peggy Matia Mufalali testified that during June 1999 the accused arrived at her

house in Katima Mulilo in the company of one Elvis Puteho and Solvent Chunga.

The accused told her that they were coming from Dukwe refugee camp, that they

were tired of being intimidated and that they wanted to report themselves to the

108 P 2449.

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police. She testified that she sent someone to call her ex-husband, Stefan Ntelamo,

from work. When he arrived the accused asked him to transport them to the police

station. Her ex-husband then left with these individuals. When he returned he

informed her that they had requested to be dropped off at Masokotwane since they

wanted to tell the pastors that they (ie pastors) should go to the police and report

them. This witness identified Victor Mutengu as accused 60 in court. This witness

was not cross-examined by Mr. McNally.

[377] Mary Lumba Shamulele testified that during June 1999 she stayed with her

brother-in-law one Stefan Ntelamo when three men arrived at the courtyard of Stefan

Ntelamo. She recognised one Victor Matengu. She was still at school at that stage.

She was with her sister Peggy, the wife of Stefan Ntelamo. The three men were

tired. Stephan Ntelamo asked them where they were from and Victor Matengu

replied that they were from Botswana. She testified that the three men slept there

that night and the next day Stefan Ntelamo took them to Katima Mulilo. Victor

Mutengu was identified in court as accused no. 60. During cross-examination the

witness was asked whether she could confirm that the incident took place around 12

July to which the witness replied that she could not remember because at that stage

she was still young. The witness could not tell whether these individuals were taken

to court.

[378] The accused testified that he was arrested on 2 August 1999. The accused

denied that he recruited persons in the Caprivi Region to flee to Botswana in order to

liberate the Caprivi from the rest of Namibia by military means; that he was not a

member of the DTA and did not attend DTA meetings; that he never departed with a

group under the command of John Samboma to Angola via Singalamwe in order to

get fire-arms; that he did not do it because he is not a soldier; that he did not on 6

October 1998 return to Namibia under the command of John Samboma in order to

establish a rebel base at Sachona; that he had not fallen ill at Singalamwe and had

not been taken to hospital in Katima Mulilo; that he never upon recovery re-joined

the rebels under the command of John Samboma to Botswana; that he fled to

Botswana on 1st November 1999 via Zambia through Katima Mulilo border post using

his passport and used Kazungula border post to Botswana.

[379] The accused corrected himself by stating that he did not go to Zambia on 1 st

November 1999 but in 1998. The accused denied that he was a camp leader at

Dukwe. The accused denied that he escaped from Dukwe during May, June 1999

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with the group of Gilbert Poshowe, Richard Misuha, Moses Kayoka, Ignatius

Twabushalila and Elvis Puteho. The accused testified that he ‘asked for a permit

from the BCR in Botswana’ so that he could leave the refugee camp and when he

returned from Botswana he was alone. The accused testified that when he returned

he reported himself to the police; that on the 2nd August 1999 he was at home with

his family. The accused denied that he was a member of the CLA as testified by

Siboli; denied that he attended a meeting during the year 1992 indicating there his

willingness to go to Angola for training and the acquisition of weapons; he denied

that he attended a meeting during 1997 at the house of Muyongo where the issue of

secession was discussed, since he was not a member of the DTA; that he reported

himself on the 9 July 1999, that he appeared in court on 12 July 1999, was found

guilty on a charge of illegally entering the country and sentenced to a fine of N$ 800-

00 or 8 months imprisonment. He paid the fine.

[380] During cross-examination by counsel, Mr. Muluti, the accused confirmed that

the witness Nuwe did not identify him (ie accused) in court. The accused further

testified that he had never gone with the witness Numwe and John Samboma to

Angola. The witness further stated that according to the evidence, Nuwe was born in

1961and not in 1968 and this made it impossible for them to be together in school.

[381] A number of submissions were made by Mr. July on behalf of the State.

However before I deal with those submissions, I need to access the admissible

evidence presented by the State. The evidence of Mwisepi is of no consequence

since the accused admitted that he was at Dukwe. This evidence never incriminated

the accused person. The evidence of Christopher Siboli was that the accused was a

member of the CLA and attended two meeting where secession was discussed. The

implication of this evidence is that the accused was at the very least aware of

treasonous activities and failed to report it to the authorities. The witness Albert

Chalo’s evidence implies that the accused was aware of an impending attack during

June 1999. However the concession made by the witness excludes the possibility

that he could have met the accused during June 1999.

[382] The evidence of Michael Nuwe, though very incriminating, has an Achilles

heel namely his failure to identify the person he referred to as Victor Masiye

Matengu. The danger of accepting that where a name mentioned by a witness

corresponds with the name of an accused person that it must be the accused

referred to, was illustrated when reference was made to a gentleman who worked at

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the Government Garage, Katima Mulilo, who has the same name as one of the

accused persons. The uncontested testimony of Peggy Mufalali was that the

accused informed her that he came from Dukwe refugee camp and wanted to report

himself. This incident occurred during June 1999. The evidence of this witness was

corroborated by Mary Shamulele. If this evidence is accepted, as I do, then the

question which needs to be answered is, where was the accused person and what

was he doing before he reported himself (according to his testimony) to the police on

9 July 1999?

[383] It was submitted by the State that the evidence-in-chief of the accused can at

best be described as a total denial of the State’s case against him. I agree that the

accused denied all the incriminating evidence aginst him. The State’s case against

the accused as shown can only be founded on the evidence of Siboli, Peggy Mufalali

and Mary Shamulele. The evidence of Siboli is the only evidence which directly

implicates the accused in the commission of the crime of High Treason and the

charges of murder and attempted murder. It was submitted by Mr July that the

accused testified that he heard on the radio and television that Muyongo had left on

29 October 1999 but that he did not know the reason why Muyongo had left and that

this is an untruth since the overwhelming evidence before court tends to show that

Muyongo and the Chiefs’ sudden departure to Botswana was prompted by the killing

of Victor Falali by the army of Muyongo and that this fact was widely published in the

media. It was submitted that the accused did not dispute that Muyongo went to

Botswana with the group of 92 with the aim to prepare for the secession of Caprivi

from the rest of Namibia. It was submitted that the accused contradicted himself by

first stating that he never followed Muyongo but subsequently testifying that he fled

to Botswana. I am not sure whether it can be said that the accused contradicted

himself because the evidence shows that persons went to Botswana for different

reasons, some for innocuous reason others for more sinister reasons. The fact that a

person fled to Botswana therefor in my view may or may not be an indication of an

association with or support for the ideals and aims of Muyongo.

[384] It was further submitted that the accused gave different reasons why he had

left for Botswana namely, harassment, intimidation, assaults, threats, and fear of

death. It was submitted by Mr July that the accused admitted that he did not inform

anyone in Dukwe what he had told the Botswana authorities in order to be there as a

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refugee. I do not know whether any negative inference may be drawn from the fact

that the accused did not inform those at Dukwe regarding what he had informed the

Botswana authorities. It was submitted that the explanation by the accused why he

had taken a ‘strange’ route via Zambia to Botswana is unconvincing and that the

accused did so in order to mislead the Namibian authorities into believing that he did

not associate with others who were in Bostwana. The accused during cross

examination claimed that Wanela Border post was much nearer than Ngoma border

post and easier and quicker to get transport to Wanela border post.

[385] During Cross examination, the accused testified that he left Namibia because

he was harassed and intimidated by security forces especially officer Sishando who

came to his house and interrogated him many times during October 1998 especially

after the death of Victor Falali on 27 October 1998. On 28 October 1998 he was

interrogated twice at the Special Branch Office and on 30 November Sishando came

to collect him again enquiring about Victor Masiye who went to Angola.

[386] The accused was asked why he had never mentioned in his evidence-in-chief

that he had been harassed and intimidated. The accused replied that he did testify

that he was intimidated that is why he had to flee. The accused was asked for a

second time why he did not mention it during his evidence-in-chief. The accused

replied that he did mention that he was harassed. The record however does not

reflect any testimony that he had been intimidated or harassed as the reason why he

had fled Namibia. It however appears that the accused was never asked during his

evidence-in-chief as to the reason why he had fled Namibia. Nevertheless one would

have expected of the accused to state first that, and not stating an untruth namely

that he did testify about it.

[387] When it was pointed out to the accused person that he ‘gave bare denials’ to

the allegations made by the State, the accused stated that it was the truth. When

asked whether he would agree that during 1998 various meetings were held in the

Caprivi where the violent secession of Caprivi was discussed the accused denied it

because he did not attend any of those meetings. The accused subsequently

conceded that he could not dispute it. The accused denied that he fled to Botswana

to join the secession movement and not that he was harassed. The accused testified

that he met Elvis Puteho at a place called Nata approximately 45 Km from Dukwe

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where the boarded a bus, but that he never met Elvis Puteho in Dukwe. The accused

testified that he was never in the army or in the Police Force. The accused testified

that he did not know the witness Siboli prior to him testifying in court, and that the

only Siboli he ‘knew was his elder brother who was a police officer’. The question

which begs to be answered is how did the accused know that police officer Siboli Is

the elder brother of the witness Siboli if it is true that he had never known the witness

Siboli?.

[388] The accused testified that he did not see Siboli in Dukwe because the refugee

camp is ‘huge and large’ with different zones. The accused testified that the reason

why he did not return through the process of repatriation was that the ‘list was too

long’ and repatriations were delayed so he just decided to come home, he did not

register for repatriation. The accused did not dispute that Minister Jerry Ekandjo

visited the refugee camp during February 1999 encouraging Namibians to return to

Caprivi. The accused testified that the Ovis Kwala is his elder brother. When asked

why Ovis Kwala would falsely implicate him by stating that he saw the accused

during May 1999 at Extension 2, house 916 KM, the accused replied that he only

returned during July 1999. The accused admitted that Kwala testified that, but stated

that it did not emanate ‘from the bottom of Mr Kwala’, that it was instigated by the

police and that after he had reported himself to the police Ovis Kwala had informed

him that the police ‘troubled’ him asking him where his younger brother was. This in

my view is pure speculation and was never put to Kwala during cross-examination.

[389] The witness testified that he knows Peggy Mufalali and Mary Lumba and had

no trouble with them. When the accused was asked why Peggy would ‘falsely

implicate’ him by testifying that she saw him in Masida during June 1999, the

accused replied that Peggy did not accuse him of anything in court, and that she

testified that she saw him at her courtyard where she used to stay with the husband ‘

in the year July 1999 not June’. This is not supported by the record. When it was put

to the accused that Peggy testified that he had informed her that the reason he left

Dukwe was because of intimidation, the accused replied that this testimony was

false. This was however never put to the witness. The accused was reminded about

the testimony of Peggy to the effect that when they arrived at her courtyard they

were three individuals. The accused replied that she testified that they were two. The

accused was reminded of the testimony of Mary Lumba that she observed three

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persons. The accused replied that she testified that she saw two persons. The

record reflects that both Peggy and Mary testified about three individuals. In addition

Peggy mentioned the names of all three persons. The accused testified that it was

himself and Solven Chunga who were at the courtyard of Peggy, and that Elvis

Puteko was at that stage at his uncle’s, Mr Jimmy Mutakali Lumo’s residence.

[390] The attention of the accused was drawn to the record of the bail proceedings

in the Magistrate’s court, Grootfontein on 23 August 1999 where the magistrate had

informed them of their right to legal representation and legal aid. The accused

replied that he does not dispute that the rights had been explained but that he did not

hear well since he ‘was afraid from the torture’ that he ‘received from the police from

home’. It appears from the record that the correct translation from the record used by

the accused in his vernacular was not the word torture but the word ‘beaten’. When

the accused was asked why he had never testified that police officer Sishanda had

beaten him, the accused replied that he had a reason why he did not testify that he

had been beaten. The accused stated the following:

‘I did not state of being beaten by the police by 1999 when I was here but I have said

that the reason since when I am standing in this witness box now that I spoke and stated of

Sishanda that he assaulted me. I said that yesterday. ‘

[391] The prosecutor then asked the accused to answer the question whereupon

the accused replied:

‘The answer is that I said that’

[392] The record however does not reflect that the accused at any stage testified

that he had been assaulted. The accused was being untruthful when he testified that

he did say it. It appears from the evidence that the accused, Solvet Chunga and

Elvis Puteho were arraigned on the same charge sheet in the Magistrate’s Court.

The accused was asked where did Elvis Puteho leave him in the company of Solvent

Chunga and the accused replied that it was at Mosokotwani when he (ie Elvis

Puteho) embarked upon a journey to his father’s village. This is a contradiction. The

accused earlier testified that Elvis Puteho was at his uncle’s village at the time he

was at the courtyard of Peggy. The accused testified that after he had been assured

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by Minister Jerry Ekandjo that no one would harass him on his return to the Caprivi

he decided to return. Strangely, however, he chose under the guise of a permit

(which did not allow him to leave Botswana) to return illegally to Namibia and face

hardship, namely, prosecution in respect of entering Namibia illegally. The accused

was further dishonest when he obtained the permit as a ruse to return to the Caprivi

Region.

[393] I hold the view, in reply to the question posed earlier, that the accused had

known the witness Siboli. The inference that the denial of the accused in this regard

was to disassociate himself from an admitted secessionist and any complicity in

secessionist activities, is in my view, inescapable. The accused was a poor witness,

was evasive and on more than one occasion unfairly accused the prosecutor of

denying him the opportunity to answer questions. Mr McNally reminded the court that

since the witness Mwisepi was a single witness as well as an accomplice a double

cautionary rule should be applied. I have indicated earlier that the testimony of

Mwisepi does not directly implicate the accused person. If Mr McNally had referred

to the witness Siboli I would have agreed with his submissions. This however in my

view does not mean that the testimony of Siboli should be disregarded in toto.

[394] There is incriminating evidence against the accused. The defence of the

accused is a bare denial. I have indicated on more than one occasion that the

accused was an untruthful witness. The denial by the accused that the witness Siboli

was unknown to him is rejected and so is his testimony that he only returned to the

Caprivi on 7 July 1999. I am satisfied that the accused had at the very least known

about treasonous activities and failed to report same to the authorities at a time

when any law abiding citizen would have done so.

Richard Limbo Mukawa (accused no. 91)

[395] Christopher Siboli testified that he attended a meeting at the house of the

accused in Ngwezi, Katima Mulilo, during the year 1998 where the issue of the

secession of the Caprivi Region was discussed. It appears that this was a meeting

where information was provided to the attendants and Siboli testified that the ‘idea

was just to proceed or continue with the idea of seceding the region’. Siboli further

testified that the accused was one of the mobilisers of persons for the secession of

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the Caprivi Region. Siboli further identified the accused as one of the persons who

donated money for the acquisition of weapons in Angola.

[396] During cross-examination, Siboli agreed that in respect of a statement

deposed to him on 23 March 1999, the name of Richard Makuwa is not mentioned.

Siboli pointed out that he deposed to more than one witness statement. Innocent

Falali Muhota testified that Richard Makuwa was one of a group of persons who on

18 April 1999 at Chichimane opposed the inauguration of the new Mafwe chief. He

testified that he was the chairperson of the inauguration committee. The witness did

not identify Richard Makuwa as one of the accused persons before court.

[397] The accused testified that he was arrested on 5 August 1999. He was

employed as a senior security officer protecting ‘Government-Buildings’. The

accused testified that he did not attend any political meeting during the year 1998

and that no meeting was held at his house with the aim of seceding the Caprivi form

the rest of Namibia. The accused testified that he was given a ‘warning’ at work that

being security officer they should not indulge themselves in political matters. The

accused denied that during 1998 he attended a meeting at the DTA offices in Katima

Mulilo where Mishake Muyongo and Geoffrey Mwilima were the main speakers and

where the topic of the meeting was the secession of Caprivi from Namibia. The

accused denied that he had attended a meeting at his own house during 1998 where

the topic of discussion was to mobilise people to go to Botswana in pursuance of the

conspiracy to secede the Caprivi Region. The accused retorted that the DTA had

their own head office in Katima Mulilo and that he was not affiliated to the party. The

accused testified that he only came to know about the CLA in court. The accused

denied that he was part of a group who opposed the appointment of Chief George

Simasiku Mamili on 18 April 1999.

[398] The accused further testified that the witness Innocent Falali Mahoto never

testified that he was amongst the persons who opposed the inauguration. This is

however incorrect. The record clearly shows that Innocent Falali Mahoto indeed

testified that one Richard Mukawa was amongst the group who opposed the

inauguration. The accused denied that Siboli ever attended a meeting at his house,

and that Siboli was unknown to him. The accused expanded by stating that Siboli

failed to mention all his names and testified that he only knew the accused as

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‘Richard’. After the case was transferred from Grootfontein to Windhoek the witness

was able to mention all his names. The accused questioned how that could have

happened. The accused denied ever donating money for the acquisition of weapons

in Angola. The accused denies that he was aware of the idea to secede the Caprivi

region from the rest of Namibia and that he failed to report it.

[399] During cross-examination, the accused testified that he knew about people

going to Botswana prior to his arrest, that it was reported on the radio and on NBC

that he heard on the radio that the reason they went was because they were

harassed; that he did not hear about secession before his arrest; that during the

attacks on 2 August 1999 he was at home; that he heard about secession on the

radio after the attack the next morning; that he did not do anything the night of the

attack and just waited to hear what will be the outcome; that he did not know before

hand of the attacks; that he agreed that people had died ‘because it was a war’; that

he did not know about the CLA who went to Bostwana; that he did not know why

Muyongo and Chief Mamili fled to Bostwana; that he knew about the death of Falali

who was shot; that he did not hear about the UDP during 1998 except that it was

affiliated to the DTA; that he knew Alfred Tawana as the chairperson of the

Traditional healers.

[400] The accused was referred to his warning statement where it was asked when

he has heard about ‘secession to which the accused replied: ‘I learnt the Caprivi

secession in the media as well as in the newspapers in 1998 when I was driving from

Oshakati to Katima Mulilo, in Tsumeb when I bought a newspaper’. The accused

replied that he forgot to mention that he had bought a newspaper. It was pointed out

that he also forgot that he was driving from Oshakati. The accused agreed that he

did not mention it. The accused was reminded of his answer to a question as to

when he became aware of the Caprivi Liberation Army to which the accused

answered that he heard about it in court. The accused was referred to the bail

application (Exhibit F 3 p 204) where the same question was asked and where he

replied that they only heard those things on the screens (television), on the radio,

media and in newspapers. The accused agreed that was what he said during the bail

application and forgot about it. The accused stated that at times when ‘one tends to

speak there is always a slip of the tongue’.

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[401] The accused was reminded of his reply the previous day to a question

whether he had been to Zambia to which he replied that he went to the guest house

of Makai, once. He was referred to the bail application on 20 September 1999 when

he was represented by Mr Makando and the prosecutor Mr Kozonguizi had asked

him when he had visited Makai’s Guest house, the accused replied that it was in

1996. The accused was referred to his reply during the bail application was that it

was ‘last year’. The accused disagreed. It was put to the accused that Mr Kozonguizi

then asked him ‘what last year?’ and then he replied: ‘I was sick but now I do not

remember the date. My last trip was in July. I went to Mulatwa in Zambia’. The

accused replied that he recalled that response and was asked whether he wished to

say something. The accused replied: ‘no my Lord’. It was suggested to the accused

that he went to Zambia twice. The accused disagreed.

[402] The accused was referred to the evidence of the witness Mahoto who testified

about the inauguration and a group who opposed it. The accused was reminded that

he had said the previous day that he did not attend the inauguration because he was

at work. The accused agreed and stated that when those who had attended the

inauguration returned they informed him about it. The accused stated that the

witness Mahoto did not testify anything about him. The accused testified that he

gave instructions to counsel that he did not attend the inauguration because he was

at work. The accused was asked why there was no cross-examination by counsel in

respect of the evidence of Mahoto. The accused replied that there was no need to

ask the witness any question. The accused replied if the police gave a name to

someone such person would come and incriminate him. This is pure speculation.

[403] Margareth Levy Chunga was called on behalf of the accused person. She

testified that the accused is her husband and employed by CIS Trading Store. She

further testified that no political meeting was ever held at her house. She testified

that she knew no such meetings were held because when she is at work the children

would have informed her. She knew Siboli since there was a love triangle between

her younger brother, a girl, and Siboli. She denied that the accused was a mobiliser

for persons for the secession of Caprivi and denied that the accused donated money

for the acquisition of weapons because she kept his ‘BOB card’.

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[404] It was submitted by Mr July that in cross-examination this witness informed

the court that she missed the accused and would do anything to see him at home. It

was established that her husband did not on a daily basis tell her everything as she

wanted the court to believe. It was further submitted that she contradicted the

testimony of the accused whether he had known or had heard about secession, that

he denied hearing about it and where she stated that she heard about the issue of

secession on the radio and that he, the accused, was present at that stage. I do not

agree that there was a contradiction in any manner. The accused was questioned as

to when he had heard about secession and he replied referring to the incident on 2

August 1999. The accused however subsequently during cross-examination109

testified that he heard about secession the next morning on the ‘radio NBC’.

[405] I agree with Mr July that the accused was a poor witness. I would go further

and describe him as a recalcitrant witness who had contradicted himself on several

occasions. The explanation by the accused why Siboli had testified against him is

pure speculation. I am of the view that the defence witness Margareth Levy Chunga

was not discredited as a witness and there is no reason why I should reject her

evidence as false. I furthermore draw no negative inference from her testimony that

she missed her husband and would do anything to see him home. This is what one

would have expected a wife to say. It would indeed have been strange if she had

testified to the opposite effect. The witness Siboli was a single witness and an

accomplice and his evidence must be approached with the required caution.

However in spite of the fact that the accused was a recalcitrant witness, he is

supported in his denial that a political meeting as testified to by Siboli was held at his

house, by the testimony of his wife whose testimony I have indicated was not

discredited.

[406] Mindful of the burden of proof which the State carries, I am not satisfied that

there is proof beyond reasonable doubt that the accused had committed any of the

charges preferred against him.

Alfred Tawana Matengu (Accused no. 79)

109 P 37080, lines 15-21.

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[407] Oscar Mwisepi testified that the accused attended a meeting at Liselo in the

year 1998 where the resuscitation of the UDP was discussed; also discussed was

the formation of an army. The witness testified that the accused was an interpreter at

meetings addressed by Mishake Muyongo and that he never used to miss a meeting

convened by Muyongo. Mwisepi testified that the accused was an interpreter at the

Liselo meeting. This witness identified Alfred Tawana in court as accused no 79.

During cross-examination Mwisepi testified that he did not see anyone at the Liselo

meeting disagreeing with ‘that idea’. The witness conceded that Muyongo at that

meeting did not use the word ‘army’. It was put to Mwisepi that he did not testify that

Muyongo said that Caprivi should be seceded by violent means. The witness

disagreed. The witness confirmed that the accused was an interpreter at that

meeting.

[408] The evidence of Mwisepi that the accused was an interpreter at the Liselo

meeting was not challenged during cross-examination. Christopher Siboli testified

that the accused attended a meeting at the DTA office in 1989 where secession was

discussed and that it was to be achieved by violent means. He testified that the

accused was present when the CLA was formed in 1989. He testified that the

accused was present when an answer was received from Angola that weapons

could be procured from Angola and that people could go there in order to receive

military training. He testified that the accused donated money. He testified that the

accused was present in 1991 at a meeting where ex-SWATF/ Kopana ya Tou

members gathered and that the accused supported the secession of the Caprivi

Region. The witness identified the accused in court.

[409] This witness testified that the accused attended a meeting during 1992 at the

DTA office chaired by Mishake Muyongo where the acquisition of weapons from

Angola was discussed. The accused at this meeting stated that he was ‘willing to see

the region being seceded’. He testified that the accused attended a meeting during

1993 at the DTA office in Katima Mulilo where the secession of the Caprivi region

was discussed. Siboli further testified that during the year 1997 meetings were held

at the DTA office, at the old House of Muyongo, at the new house of Muyongo, at

Liselo village, at Masokotwani, at Linyanti, at the house of the accused, at Sangwali

and at Kongola and at Sibanda village where the issue of secession was discussed.

He testified that the accused attended all these meetings. He testified that the

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accused attended a meeting during 1998 where secession was discussed and was

present at a meeting at the DTA office in Katima Mulilo where money was donated in

order to acquire weapons from Angola.

[410] During cross examination the witness testified that he was not a member of

‘Kopano ya Tou’; that ‘Kopano ya Tou’ was formed in 1989; when it was put to him

that ‘Kopano ya Tou’ was formed in 1983 he disagreed. The witness was reminded

that during cross-examination he could not remember attending any meetings during

1992 in connection with secession and the witness agreed; that he could not recall

any meeting during cross-examination during 1993 where secession was discussed

and the witness disagreed; that during cross-examination he could not recall any

meeting during 1994 where secession was discussed and the witness agreed; that

he could recall a meeting in 1995 at Muyongo’s house in Windhoek and the witness

agreed; that in 1996 he did not recall any meetings and the witness disagreed; that

in 1997 he could recall meetings and the witness confirmed it; that in 1998 he could

recall certain meetings and the witness confirmed it; that he remembered attending a

meeting in 1999 but did not know where, the witness agreed; that in 2000 there were

no meetings were secession was discussed and the witness agreed; that in 2001

there were no meetings were secession was discussed and the witness agreed; that

he does not know how many mobilisers were there during the year 1990 until 1999

and how many persons were mobilized; that he knew two persons by the name

Alfred Tawana namely the one who worked at Government Garage, and accused no

79; denied that the accused was the vice President of the UDP and served in the

same comitee which the witness had served which had to make some

‘arrangements’ for seceding the Caprivi.

[411] It was put to the witness that Afred Tawana will deny that he was a mobiliser.

The witness disagreed; that as vice-President of the UDP the accused was well

known in the Caprivi Region, the witness agreed; that the witness was no office

bearer of either the DTA or the UDP, the witness agreed; that the accused will say

that the UDP held public meetings, the witness agreed; and that those were the only

meetings that the accused had attended in his capacity as Vice-President of the

UDP, the witness replied that he does not know; that the witness was not a high

ranking official in the DTA or the UDP, and the witness agreed; that he was just a

member of a committee in charge of receiving complaints, and the witness gave an

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inconclusive answer; it was asked to the witness that despite him not being a high

ranking official he was invited to all the secret meetings, the witness gave an

inconclusive answer.

[412] Christina Nyambe testified that the UDP was a regional party affiliated to the

DTA and that during the year 1996 at a congress of the UDP Mishake Muyongo was

elected as President of the party and the accused was elected as Vice-President.

Shailock Sitali Sinfwa testified that he was the branch chairperson of the UDP. This

witness testified about a meeting in 1998 where the attendants were informed that

the UDP separated from the DTA and that the Caprivi would be seceded from

Namibia. This witness testified that Alfred Tawana attended this meeting. This

witness however failed to correctly identify Alfred Tawana in court.

[413] The accused testified that he was a member of the DTA and was the Vice-

President. In 1996 he was employed at Local Government and Housing. He testified

that a person with a name similar to his namely Alfred Tawana worked at the

Government Garage. He testified that he did not attend a meeting at Liselo as

testified by Mwisepi since his employment as a civil servant prevented him from

doing so. He denied having attended meetings at the different places as testified by

Siboli stating that there were counsellors in those constituencies who were supposed

to conduct meetings. Regarding the meeting he allegedly attended according to

Siboli in Linyanti, he testified that the meeting there was held for the Mafwes and that

he is a Masubia. In respect of the testimony of Mwisepi that he was an interpreter at

the Linyanti meeting in 1998 he stated that if Muyongo used his mother tongue,

Sifwe, he could not have interpreted being a Mafwe, and if Muyongo had used the

English language, Muyongo is much more fluent in English and that he only reached

standard five in school. The accused denied that he was present when the CLA was

formed in 1989 and testified that he only came to hear about the CLA in court; he

denied being present when an answer was received from Angola that weapons

would be procured from Angola and that people could go to Angola for military

training; that these were stories made up by Siboli; he denied donating money;

denied attending a meeting during 1998 at the DTA office chaired by Muyongo

where the acquisition of weapons from Angola was discussed; he testified that prior

approval from the police was required in respect of the programme of the meetings

and that Intelligence officers attended the meetings; that since 1987 they submitted

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all the programmes of their meetings to the police; that he attended public DTA

meetings; denied that he recruited people for the CLA; that he does not know who

founded the CLA and where it was founded; and denied that he was a mobiliser for

the CLA.

[414] During cross-examination the accused testified that he got involved in politics

from 1987 to 1988 by starting branches for the UDP party and mobilizing people to

vote for the party; the objective of the party was to represent all Caprivians in

Windhoek; that since 1990 the UDP ‘was not working’ because it was affiliated to the

DTA; that he held the position of Vice Regional Chairman of the DTA. The accused

was asked whether he was the vice –president of any party and never gave a direct

answer until eight questions were asked where he stated that he was never a vice

president but a vice-chairperson of the UDP from 1994 until 1996. It was put to the

accused that counsel had put it to Siboli that the accused was the vice-president

whereupon the accused replied that it was just a misunderstanding. When asked

whether the UDP ‘ever featured again’ after 1996 the accused replied that from 1996

to 1998 the DTA was the only party which was well known in the villages. The

accused stated that as a Vice-Chairperson he was second in command and at the

same period Mishake Muyongo was the president of the UDP. The accused testified

that as Vice-Chairperson his duty was to draw up programmes and to go into villages

to announce when meetings would take place; that the main speaker at these

meetings was Muyongo and that he (ie the accused) attended many meetings; that

he attended these meetings from 1989 until 1996; that secession was never

discussed at these meetings. A question how closely he worked with Muyongo was

posed three times before the accused replied that they were not having problems. A

question whether they had a committee in the DTA who could deal with the

programmes were posed to the accused to which he replied:

‘I believe that January as you are standing there in your court records you are having

all the names of the people who were at the DTA. You are also having the page numbers.

That is how the party was operating.’

[415] The question had to be repeated and the reply was: ‘In short yes’. The

accused conceded that it was sometimes necessary, in view of the different

languages spoken by the attendants at meetings, to make use of the services of an

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interpreter. According to the accused Muyongo was dismissed from the National

Assembly. In answer to the question why he was dismissed, the accused replied: ‘ It

was just known by those people who were working with him because he wanted to

secede the region of Caprivi’. The accused testified that he did not support the

secession of the Region and that he heard about secession for the first time on the

radio, and that he was surprised. The accused testified that he did not know anyone

in the group of 92. The accused agreed that he was part of the Central Committee of

the UDP.

[416] The accused was asked his comment on the following: ‘The Central

Committee of the United Democratic Party UDP of Caprivi Zipfel amongst others its

resolution was the creation of the Caprivi Liberation Army’. The accused replied that

he heard about it for the first time. The other aims and objectives of the CLA were

put to the accused who denied any knowledge of it. The accused stated that he

resigned from the party when he ‘went into employment’. The accused was referred

to the testimony of Christine Nyambe who testified that Muyongo was suspended

from the party and that there was no other person who were either suspended or

who resigned from the DTA party during 1998 and that the only other person who

had resigned was Geoffrey Mwilima. The accused replied that he was already in

employment. It was pointed out to the accused that counsel did not cross-examine

her on this evidence.

[417] It was submitted by Mr McNally that the fact that the accused was prosecuted

is a case of mistaken identity. Mwisepi testified that the accused was an interpreter

at the Liselo meeting in 1998 and never used to miss a meeting. The accused was

known to Mwisepi. That Siboli knew the accused and was in turn known by the

witness has been established by the evidence. A case of mistaken identity can only

be argued in these circumstances, if not only the names of two persons are similar,

but also that they closely resemble one another physically and facially. There is no

evidence to this effect, and there is thus no basis for this court to find that this was a

case of mistaken identity as suggested.

[418] The accused was asked during cross examination whether the UDP existed

after 1990 to which he replied that it did not. In a bail application (Exhibit 7) during

2002 by Geoffrey Mwilima (accused no 68) an Barend Mucheka (accused no 75) a

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document forming part of the proceedings referring to the party structure and office

bearers of the UDP indicated as Vice-President, the person Alfred Tawana Matengu.

In this bail application accused 68 testified that he resigned from the National

Assembly (by letter dated 23.02.1999) because the management committee of the

UDP resolved to withdraw from the DTA. This evidence contradicts the evidence by

the accused that the UDP was not in existence after 1990 or after 1996. A press

release (marked Exhibit H in that application) dated 3 March 1999 and written on a

letterhead of the UDP further underscores the fact that the UDP was not a dormant

party. In that press release some of the issues addressed were the replacement of

Chief Mamili and the transfers of police officers.

[419] The inscription in a diary (exhibit EGO2, Page 5) of a former accused Brian

Mboozi (deceased) referred to the date of 7 May 1999 describing the joerney of a

group of people to Masokotwani where they were collected by one John Samboma

and in which one A Matengu is indicated as one of the ‘supporters’. The diary of one

M.L. Mushwena (Exh F1) a co-conspirator refers to a UDP meeting held on 1

January 1999 in Botswana addressed by Muyongo in which he stated that the simple

reason for being in Botswana was to liberate the Caprivi. This is irrefutable proof of

the close relationship between the UDP and the CLA and confirms that the CLA was

the fighting wing of the party. That the accused as vice president of the UDP feign

ignorance of this fact should be rejected, as false. His testimony that he heard of the

CLA for the first time in court is similarly rejected as false. The testimony of the

accused that as civil servant he was precluded from attending political meetings is

unconvincing. The defence of the accused to the charges preferred against him is a

bare denial. In addition his explanation why state witnesses testified against him is

unsubstantiated and baseless.

[420] The accused was very evasive during cross-examination and examples of this

was referred to earlier. What the difference is between the ‘Vice-Chairperson’ and

the ‘Vice –President’ is a question of semantics but the accused evaded to answer a

simple question. He eventually testified that he was second in command in the UDP.

I also referred to other incidents where he was evasive and further incidents appear

from the record. The testimony of the accused that he did not know about the aims

and objectives of the CLA should only be stated to be rejected. I am satisfied that the

State succeeded in proving beyond reasonable doubt the charges preferred against

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the accused person. I shall at the end of the judgment specify which charges. This

also applies in respect of the other accused persons convicted this far.

Eugene Milunga Ngalaule (accused no. 64)

[421] Oscar Mwisepi testified that he (ie Mwisepi) had continuous discussions with

the accused about ‘trips’ to Botswana and that the accused was responsible for the

registration of individuals who were to form an army. The witness identified the

accused in court. The reason for people going to Botswana was to ‘enhance’ the

idea of seceeding the Caprivi. This witness testified that once he (ie the witness) had

secured people for transport he would contact the accused.

[422] During cross examination the witness was referred to his testimony about a

meeting he had attended at Liselo during 1998, a second meeting in 1998 at Ngwezi

Hall, and a third meeting in 1998 at the DTA office before he left for Dukwe on 5

January 1998. He was referred to the meetings he had attended and to the two

meetings he had attended at Gabriel Mwilima’s house. The witness was asked

whether those were the ‘sum total’ of all the meetings he had attended. The witness

confirmed this and confirmed that he had attended no other meetings. During cross

examination the witness confirmed that the accused was present at this meeting but

did not say anything at the meeting and his only participation was the registration of

individuals. The witness confirmed that the other involvement of the accused was the

continuous discussions about trips to Botswana. The witness confirmed that this was

the ‘sum total’ of the participation of the accused person.

[423] The attention of the witness was drawn to a statement that he had deposed to

on 17th January 2001 where he had stated that the accused was one of the ‘Brand

leaders of secession’ who was tasked with mobilizing people from the villages to join

secession, he was the organizer of people to go to Botswana for the liberation of the

Caprivi. The witness confirmed that this was the case. The witness was referred to

his confirmation of the ‘sum total’ of the participation of the accused and whether

what was stated in this witness statement was a ‘lie’. The witness replied that there

was no mistake and that when he earlier responded to questions he responded with

reference to the Liselo meeting. This cannot be correct since there is no evidence

that the accused at the Liselo meeting had a discussion about a trip to Botswana.

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The witness was further reminded that he was asked with reference to his testimony

about meetings he had attended, and his confirmation of the number of meetings he

had attended. The witness confirmed this. The witness was then referred to his

statement in which he had said that he had a meeting with the accused at Liselo

village. The witness was sked whether this was a lie (to the police). The witness

disagreed and stated that the statement referred to the ‘mobilisation’.

[424] Christopher Siboli testified that the accused was a person who supported the

idea of seceding Caprivi region and that he was a mobiliser and recruiter of persons

for the secession of the Caprivi Region. This witness testified that during the year

1998 at a meeting held at the DTA office the accused was present where during this

meeting money was donated for the acquisition of weapons from Angola. This

witness identified the accused in court. During cross examination it was put to the

witness that the accused will deny that he was a recruiter and mobiliser. The witness

disagreed. It was put to the witness that the accused worked for a debt collecting

organisation in the Caprivi. The witness confirmed this. It was put to the witness that

in his witness statement dated 23rd March 1999, he did not mention the accused.

After perusing the statement the witness agreed. It was not disputed that the

accused attended a meeting at the DTA office during 1998 where money was

donated for the acquisition of weapons from Angola.

[425] Bernhard Kanzeka testified that the accused attended a meeting during

December 1998 whether the topic of discussion was the secession of Caprivi from

the rest of Namibia. The witness identified the accused person as one of the

attendants. This was the meeting which was allegedly chaired by Mishake Muyongo.

It is common cause as stated earlier that Muyongo was at that stage not in Namibia.

This witness did not mention during his evidence-in-chief that the accused had

attended a meeting in November 1998 chaired by Geoffrey Mwilima. This according

to his testimony was the first meeting he had attended during the year 1998. The

witnesses Shailock Sitali Sinfwa, Ernst Mwangala, Annety Twambo Samunzala and

Costa Siswaniso also testified but each of them failed to identify the accused in

court. Incriminating evidence came only from the witness Oscar Mwisepi and

Christopher Siboli.

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[426] The accused testified that he was arrested on 3 August 1999, was employed

by CIS Security Company, and is not a member of a political party. He testified that

he recruited persons as security guards, that he gave a list of the names to the NBC

(to broadcast the names) and these persons would approach the shop for interviews.

The accused denied that he was a founder member of the CLA (together with

Theddeus Ndala and Josephat Kalonda) and stated that he heard of the CLA in

court; denied that he was an organizer for the UDP or was in the command structure

of the CLA. The accused denied that he attended a meeting in 1998 at the DTA

office where Muyongo was the speaker and where the topic of discussion was the

secession of Caprivi, the transportation of people to Dukwe and the donation of

money. He testified that he was transferred from middle of the year 1996 to Rundu

until the year 1998. The accused denied recruiting individuals for the CLA to go to

Angola to secede the Caprivi by military means, stating he only recruited members

for CIS. The accused denied influencing people to go to Botswana and denied

organising transport for people to go to Botswana, denied that he transported people

to Botswana denied that he transported people to Botswana. The accused admitted

that he was a member of Kapano ya tou since 1987. The accused denied the

testimony of Mwisepi, that he registered people in order form an army; denied that

Mwisepi would secure people and then contact him. The accused denied knowing

Siboli, testifying that he only knew his elder brother who was employed in the Police

force; denied that he had attended a meeting at the DTA office where money was

donated in order to acquire weapons.

[427] During cross-examination the witness testified that he never went to

Botswana; that prior to his arrest he resided at Liselo village; that he was employed

at CIS company from 1994 to 1998. In January 1999 he joined Katima Security

Company; that he returned to Katima Mulilo from Rundu at the end of 1998 after he

had recovered from a motor vehicle accident; that he never during the period 1996 to

1998 returned to Katima Mulilo; that his family was at Liselo when he was in Rundu;

that he had heard about the attacks in Katima Mulilo on 2 August 1999 because he

was at home and heard the sounds of guns in town; that he did not know of an

imminent attack; that he did not hear of the UDP during the years 1998 to 1999; that

he knew the leader of the DTA was Mishake Muyongo; that he did not know that

Muyongo went to Botswana, that he heard know that Muyongo went to Botswana,

that he heard nothing because in October 1998 he was in Rundu; that he did not

hear that a group of 92 crossed from Namibia into Botswana, only heard about it in

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court, because in Rundu where he resided radio stations used languages which he

could not understand; that he only heard about the death of Victor Falali from

persons who travelled from Katima Mulilo to Windhoek when they stopped at

Shatikongoro filling station.

[428] The accused was taken to task for not challenging the testimonies of the

witnesses Costa Siswaniso, Aunety Samunzola, James Kapika Matongo and Ernst

Mwangala during cross-examination. The accused applies that they did not testify

about him since those witnesses did not identify him in Court and that it was counsel

who did the cross-examination. He was taken to task why his version was not put to

them during cross-examination and he gave similar answers.

[429] Mr July, in his heads of argument, stated that he accused was a very

unsatisfactory witness during cross-examination, in that he was reluctant to accept

that witnesses implicated him, that he could not explain why the witnesses were

never challenged with his belated version in spite of the fact that he stated that he

gave his counsel all the instructions, that when asked about the circumstances of his

arrest he tried to suggest that it was based on tribalism and suggested that counsel

for the State had falsely implicated him together with the police, that it is improbable

that he did not know about the flight of the Chief, and that his constitutional rights

were never explained to him. The witness late during cross examination conceded

that he rights had been explained to him by his legal representative during a bail

application.

[430] One of the general rules of cross-examination is that one should put to the

opposing witness as much of one’s own case to such a witness. The question to be

considered in view of the replies by the accused is whether this is necessary where a

witness has not implicated an accused person as in the present instance by failing to

identify the accused as the person who allegedly did as was testified by such a

witness.

[431] In my view an argument can be made out that it is not necessary. The

accused in such an instance may very well exercise his or her right of cross-

examination, but where there is no causal connection between the accused person

and the commission of the alleged offence no negative inference, in my view, should

be drawn for failing to cross-examine or for failing to put his or her version to such a

witness.

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[432] The accused testified that he was in Rundu from 1996 to 1998 that it was thus

not possible for him to have had the opportunity to engage with those witnesses. It

was submitted by Mr McNally that the evidence by the accused person that he was

in Rundu was uncontested by the State. I agree. The State could have refuted this

evidence by applying to Court to lead evidence out of time by calling the personnel

officer or manager at CIS to testify about the whereabouts of the accused during that

period. The evidence of Siboli that the accused attended a meeting during the year

1998 is not very specific in respect of when during the year 1998 the accused had

attended this meeting. The accused testified that he returned to Katima Mulilo at the

end of the year 1998. If it is accepted, as I do that the accused was not in Katima

Mulilo during the year 1998 then it is doubtful whether Siboli’s evidence that he saw

the accused at a DTA meeting. Mwisepi is a single witness just like Siboli and this

Court would be justified to convict if the evidence is satisfactory in every material

respect. Just like Siboli, Mwisepi is not specific when during the year 1998 he had

attended the meeting in Liselo where he saw the accused person. Since the defence

of the accused relate to a specific period I believe that concern in respect of the

evidence of Siboli may be raised.

[433] The onus is on the State to prove beyond reasonable doubt inter alia that the

accused had the required hostile intention. I agree with Mr July that the accused was

an unsatisfactory witness. However having said that, there remain doubt whether

the State has discharged its burden of proof and the accused should be given the

benefit thereof.

Mwilima Gabriel Mwilima (accused no. 61)

[434] Oscar Mwisepi testified that he attended a meeting at the house of the

accused where the topic of discussion was the escaping of the Steven Mamili group

from Botswana to Namibia. During this meeting he was labelled by one Chris

Muchana as an informer and he left. Mwisepi testified that the accused is his bother-

in-law as well as his cousin. The witness identified the accused in court. Another

meeting was also held at the house of Gabriel Mwilima who had invited him to the

meeting. That meeting was chaired by Devil Kavo Mowa. At this meeting issues

concerning the ‘renegades’ in the bush who were preparing themselves to come and

fight were discussed.

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[435] Regarding the attack on Katima Mulilo the witness testified that he had been

informed by “many people” including one Gabs Mwilima Mwilima and Devil Kavo

Mowa that the attack would take place o 1st August 1999. This witness further

testified that Gabriel Mwilima and Bollen Mwilima were arrested outside Dukwe

refugee camp and as a result of their arrest the refugees staged a demonstration

inside the camp. Gabriel Mwilima and Bollen Mwilima were subsequently removed

by the authorities and taken to a place called Nata.

[436] During cross-examination the witness agreed that during the first meeting he

did not hear any discussion about secession. The witness testified that at the second

meeting Devil Kavo Mowa had brought certain information (to be shared with the

attendants). The witness testified that he did not know the conclusion reached at

that meeting because he went outside the house. Regarding the issue of the attack

the witness testified that the accused did not mention a specific date when the attack

would take place. This is contradiction. It was further put to the witness that Gabriel

Mwilima was on his way to Katima Mulilo when he saw people along the road close

to Dukwe Refugee camp whom he recognised form Katima Mulilo, and that was

when the Botswana authorities thought that he was interfering with those people.

The witness disagreed. It was put to the witness that Gabriel Mwilima will deny that

any meeting took place at his house. During re-examination the witness testified that

people had informed him at the end of July about the attack and that Gabriel Mwilima

had informed him that the attack would occur on 1st August 1999.

[437] Christopher Siboli testified that the accused attended a meeting in 1997 at the

old house of Mayongo and identified the accused as one of the persons who

donated money for the acquisition of weapons from UNITA in Angola. Siboli testified

that during 1997 he accompanied a delegation of persons in order to deliver a letter

from the Chief in Linyanti to a Governor in Botswana concerning the secession of

Caprivi from Namibia. The accused transported them to Botswana. Siboli testified

that during 1997 the accused accompanied a delegation including Chief Boniface

Mamili to Pretoria in South Africa in order to see a certain Mr. Zimmerman with the

aim of getting his support for the idea of seceding the Caprivi and the possible

delivery of mercenaries for this purpose.

[438] During cross-examination it was put to this witness that he made no mention

in his statement of 23 March 1999 of Gabriel Mwilima. The witness replied that he

could not recall but that there is a statement in which the name of Gabriel Mwilima

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appears. This witness deposed to more than one statement. It was put to the

witness that the State did in the further particulars refer to this trip to South Africa

regarding a visit to a Mr Zimmerman, and what the State alleges in respect of South

Africa was that the accused went to arrange for a flag and T-shirts. The witness

replied that he was not at fault.

[439] The witness Bernard Kanzeka testified that this accused was one of the

attendants at a meeting in November 1999 addressed by Geoffrey Mwilima at the

DTA office where Geoffrey Mwilima at the DTA office where Geoffrey Mwilima

informed them about the idea of secession that money should be donated, and that

people should go to Botswana. According to this witness there was a disagreement

at some stage but later after a break consensus was reached. The witness stated

that he Gabriel Mwilima was amongst those who attended the meeting. This witness

however, when given the opportunity to do so failed to point out Gabriel Mwilima as

one of the accused persons in Court.

[440] Vessimus Haipa, a constable in the Namibian Police Force, testified that on

27 October 1999 approximately 13h00 he was in the company of Constable Aupa

and Sergeant Simasiku when the house of the accused in Katima Mulilo was

searched. The accused was in custody at that stage, but the search was conducted

in the presence of the wife of the accused. During the search some items were

found which were considered to be of evidential value. These items were taken to

the police station and booked into the Pol 7 register as exhibits by sergeant

Simasiku. He testified that during the search the wife of the accused Betty Muyongo

was always present.

[441] The witness was cross-examined, but not in connection with the search of the

house of the accused. The accused testified that he was employed as a teacher in

the Ministry of Basic Education and Culture. The accused denied that he attended

various meetings during the years 1997 to 1998 as testified by the state witnesses.

The accused testified that he had never been a member of the DTA or the UDP but

had been a member of SWAPO. The accused denied that he went to South Africa to

arrange for a flag and T-shirts; denied that he donated money at a meeting; denied

that he transported people to Botswana in pursuance of a conspiracy to secede the

Caprivi Region from the rest of Namibia, he denied the testimony of Mwisepi about

the two meetings allegedly held at his house; that he did not know Mwisepi and that

Mwisepi never set foot at his house; that Mwisepi is not related to him; denied that

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he told Mwisepi about a pending attack on 1st August 1999; that he did not attend

any meeting at the old house of Muyongo; that he did not transport Siboli and other

persons who took a letter form Chief Boniface Mamili to the Governor of Kasani,

Botswana; that he heard on the radio about a visit of a Chief of Barotseland in

December 1993; that he did not have a vehicle at that time; that he obtained his

driver’s licence on 12 January 2000; that he purchased his vehicle on 5 September

1996; that he did not have a vehicle and did not know how to drive, that he never

went to South-Africa in order to meet a Mr Zimmerman; that we never attended a

meeting testified to by Kanzeka and that he was never part of a conspiracy to

overthrow the Namibian Government in the Caprivi Region.

[442] During cross-examination the accused testified that Muyongo in his father-in –

law and that he was on good terms with Muyongo; that he visited Muyongo; that he

heard that Muyongo was expelled from the DTA; that he did not speak to Muyongo;

that he did not speak to Muyongo about his expulsion; that Muyongo left for

Botswana during October 1998 and that he was surprised because he heard about it

on the radio; that his wife was worried about Muyongo leaving Namibia, cried a lot

and that worried him indirectly that he did not want to establish why Muyongo had

left; that the reason why Muyongo had left was public knowledge through the media

namely that the he fled to Botswana with the group of 92 and that the group of 92

wanted to secede the Caprivi Region from Namibia; that he did not find out from

Muyongo what this was all about; that he could not report to the Government what

was already known to them and that he had not previously known about the issue of

secession, that he did not know whether the issue of secession was public

knowledge during 1997; that he went with Bollen Mwilima in 1999 to Botswana; at

that stage his house was under construction; that he wanted a bath tub; that he

decided to go to Botswana; that Bollen Mwilima also wanted to build a house so they

left together; that Bollen was interested to buy zinc sheets for a roof; that they went

to Kansani, Francis Town and Gaberone; that Gaborone is between 800 and 900 km

from Katima Mulilo; that they wanted to purchase the material in Gaberone because

the material was cheaper; that they travelled with a Toyota Corolla sedan vehicle;

that they found the material but did not buy any since the idea was not to go and

buy, but to get quotations and would have made arrangements at later stage to

transport the material; that this indeed meant double trips; that his wife Betty did not

accompany them and was aware about the purpose of their journey; that he was the

driver of the vehicle; when he passed Francis Town on their way back he observed a

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lot of people a passing; two vehicles parked on the left side of the road; that he

moved slowly before the parked; that people were waving, the people came to him

and he realized those were the people who fled to Botswana, and just before he

started greeting the persons the police arrived and accused him of interfering with

those persons; they were then picked up and taken to Dukwe; they were interrogated

and the car was searched nothing “wrong” was found; that they were subsequently

released and travelled to Nata where he spent the night and continued their journey

the next day to Katima Mulilo; that he did not speak to the people next to the road;

that he was not inside the police station at Dukwe; that he was not arrested, just

taken for questioning; that he was not for more than 10 minutes in Dukwe; that he

observed no demonstration; that they did not stop the vehicle neat to the road

because people were crossing the road; that at the time he stopped the police

officers were at their vehicles; and that he did not know at that stage whether those

people were refugees.

[443] The accused does not know why Bollen Mwilima had testified that he stopped

because people were shouting. The accused testified that he does not know why

Bollen referred to those people as refugees; that he did not visit his father in-law in

Gaberone; that he only once contacted Muyongo. During cross-examination the

accused was asked how Bollen Mwilima refers to him to which he answered:

‘Gabriel’. The accused was reminded that Bollen referred to him as ‘Gabs’ or

‘Gabes’. The accused replied that he was not sure, stating that those who want to

‘misrepresent’ his name do so at their own will and pleasure, without his blessings as

‘Gabes’; that he never exchanged political views with Muyongo, the first time he

became aware of the issue of secession was during 1998 when the group of 92 fled

to Botswana.

[444] Betty Mooka Muyongo was called on behalf of the accused. She testified that

the accused is a member of SWAPO and that no meetings took place at their house

during the years 1998 to 1999. She testified that the accused did not attend meeting

at her father’s house because she would have known about it. She denied any

knowledge of the accused going to Barotse land with the Chief. She testified that she

spoke to her father during 1999 after he had left Namibia on the occasion that the

deputy sheriff wanted to attach his property. She testified that she had no knowledge

of the accused person going to Pretoria to see one Zimmerman.

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[445] During cross-examination the witness testified that the accused did not go to

South-Africa. She confirmed that the accused went to Botswana looking for a bath

tub. She testified that Bollen Mwilima was just escorting him and that Bollen did not

tell her of any other reason and neither did the accused tell her. Bollen escorted the

accused because the accused did not want to go alone. She testified that the

accused had informed her that they would look in all shops for a bath tub; that if the

accused had visited her father in Botswana he would have told her, but he did not;

that she has never heard anyone calling him ‘Gabes’, he is known as Gabriel; that

she was arrested on 2 September1999 for allegedly providing medication to the

rebels at Sabinda; that she is nurse by profession; that Bollen is her cousin but did

not visit their house; that no friends of the accused in Katima Mulilo visited their

house; that the accused informed her that he had been interrogated by the police in

Dukwe; that when he approached people he saw there were people whom he knew

and thought that maybe he could talk to them but was told by the police that he was

interfering; that he saw that those people came from Katima Mulilo; that she was in

control of the household finances and would have known about any donations made

by the accused person.

[446] It was submitted by Mr July that the failure of the accused to provide a

reasonable explanation to gainsay the evidence implicating him is strange. It was

submitted that the accused was an unreliable witness and that many contradictious

emerged when cross-examined. One should look at the evidence presented by the

State which implicates the accused person. Mwisepi conceded during cross-

examination that the first meeting there was no discussion about secession. This is

so even if for the sake of argument it is accepted that there was a meeting at the

house of the accused person. In respect of the second meeting there is no evidence

what the issues were which had been discussed regarding the ‘renegades’ in the

bush. This is a general statement. There is no evidence what the participation of

the accused was in that meeting. There is also no evidence about any conclusion

reached at this meeting. The accused in any event denied that such a meeting was

held at his house. It was submitted by Mr McNally that Mr July never made any

comment about the credibility of Mwisepi and submitted that Mwisepi contradicted

himself numerous occasions and that Mwisepi was unable to state what resolution

was taken at the meeting allegedly held at Liselo and that it is a requirement to prove

conspiracy that a resolution was taken. Mr McNally referred to the testimony of

Mwiseli during cross-examination where he first stated that Muyongo alone took a

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resolution and later stated that a number of persons were involved. Mr McNally

further refers to the record where this Court informed Mwisepi that he definitely had a

problem with his hearing because the replies given by Mwisepi to the questions of

counsel did not make sense at all. It was submitted that this Court cannot place any

reliance on the testimony of Mwisepi since his replies to questions were ‘non-

sensical’. It was further submitted that his evidence should be rejected because he

is a single witness.

[447] Mwisepi also contradicted himself when he first testified in evidence-in-chief

that the accused had informed him about an imminent attack on 1st August 1999

whilst during cross-examination, stated that the accused mentioned no date when

the attack would take place, just to revert again during re-examination to state that it

was said that the attack would take place on 1st August 1999 without any explanation

why he had stated during cross-examination that no date of the imminent attack was

provided. One issue which took up considerable time was the journey to Botswana

by the accused and Bollen Mwilima to Botswana where on their return journey they

were detained at Dukwe. Mr July referred to the contradictions between the accused

and Bolen as well as contradictions between the testimony of the accused and his

wife Betty and referred to the reason provided by the accused for their journey to

Botswana and submitted that their mission to Botswana was to visit those Namibians

who were in Botswana. The accused stated that the purpose for going to the places

mentioned in Botswana until Gaberone was to find the cheapest prices and to get

quotations. In order to achieve this they embarked upon a journey of 800-900 km.

According to the accused a second journey was envisaged by the accused to

eventually obtain the building material. In my view it is contrary to human experience

and common sense that two adult male persons would undertake such a long

journey which would in effect have vastly increased their expenses in order to save

on the purchase price of the materials. It is a ridiculous story which I reject as false.

Should this Court conclude that because he had lied about this aspect of his

testimony, that it follows that he lied about the rest of his testimony and that his

denial of the evidence of the Sate witness should be rejected?.

[448] Mr McNally submitted for the reasons mentioned by him that the evidence of

Mwisepi should be disregarded. It was further submitted by Mr McNally that the

evidence by the accused that he was a member of SWAPO is undisputed since not a

single question was directed during cross-examination to dispute this testimony. It

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was submitted that the “theory” of the State that a member of SWAPO was a

supporter of secession, and wanted to secede the Caprivi from Namibia does not

make sense. I agree that the evidence that the accused was a member of SWAPO

was not disputed. It was submitted by Mr McNally that whether the accused went to

scout for a bath tub in Botswana and whether he “told” his wife about it is immaterial

since this case is about treason. In my view it was put to simplistically. The

relevance relates to the credibility of this accused person. It was submitted by Mr

July that the denial by the accused regarding the name ‘Gabes’ was in view of the

fact fact that it is recorded in exhibit EGF that ‘Gabs’ was a supporter of the rebel

movement and that Bollen Mwilima was asked whether the accused was referred to

as ‘Gabes’ and he confirmed it. On this point the record the record 110 reflects that

Bollen Mwilima was questioned about the coincidence that at the time people flocked

to Botswana he and the accused had to go and buy material in Botswana. The

accused replied that he had gone on many occasions in the past to Botswana and

that it was not only him and “Gabs” who did their shopping Botswana.

[449] It appears form this testimony that certainly the accused is referred to as

“Gabs” by Bollen Mwilima. I am not satisfied that there is evidence to prove beyond

reasonable doubt that the accused is known by the general public by that name. Mr

July further submitted that in Exhibit EGO111 reference to G. Mwilima as a supporter

(of the rebels) is made. Mr McNally submitted that this Court cannot conclude that it

refers only to the accused person, since before the court there are two G. Mwilimas

and many more may be found in the Caprivi Region. I agree with Mr McNally that it

is not the only reasonable inference to be drawn that the reference to G. Mwilima

necessarily implies that it is the accused bore court.

[450] Mr July in his heads of argument referred to Exhibit D 2 p. 259, proceedings in

terms of s. 119 of Act 51 of 1977 where a former co-accused pleaded guilty to high

treason. During the questioning by the magistrate in terms of s. 112(1)(b) of Act 51

of 1977 that accused informed the magistrate that the accused (Gabriel Mwilima)

had brought food to the rebels form Ngwezi town. This is indeed reflected in Exhibit

D2. Two observations need to be made. Firstly, that the accused was never during

cross-examination confronted with this exhibit. Secondly, it appears form this exhibit

that the magistrate had explained to the accused, who was undefended, his rights to

legal representation. When the accused informed the court that he could not afford a 110 P 36633111 pp 4 and 5

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‘lawyer’ it was explained to him that he may apply for legal aid. The accused then

replied: “Yes Your Worship I can do that.” The magistrate there upon asked the

accused as follows: “Now would you like to plea and thereafter you apply for legal

aid? To which the accused replied: “I can answer Your Worship.”

[451] It serves in my view no purpose to inform an undefended accused person that

he may apply for legal aid without informing him that he may do so before he is

required to plead to the charge. The accused could not have made an informed

decision and in my view a gross irregularity was committed. I shall this disregard

what was said by the accused in those proceedings relating to an accused person in

the proceedings before this court, referred to as Gabriel Mwilima. Siboli testified

about a meeting at the old house of Muyongo, about a delegation that went to the

governor in Botswana, and about the visit to Mr Zimmermann. It appears from the

cross-examination that Siboli never made any reference to the accused in his

witness statement dated 23 March 1999.

[452] The State in the further particulars provided never relied on the involvement of

the accused regarding a visit to a Mr Zimmerman and the purpose of that visit, and

cannot now rely on such testimony. The accused was an unimpressive witness, the

same however cannot be said by the witness he called in support of his evidence,

namely his wife. This witness was not discredited and her evidence should be

accepted. If there were contradictions between her evidence and that of the accused

it supports my finding that the accused was an untruthful witness and does not

negatively reflect on her as a witness. The State has the onus to prove beyond

reasonable doubt the commission of any offence. I am not satisfied that the State

has succeeded to discharge that onus in respect of this accused.

Jimmy James Matemwa Liswaniso (accused no. 58)

[453] Ruben Bakuba Sikwela testified that on 1 August 1999 approximately 22h00

he was with Austen Liezo when he was collected by six persons from his house,

inter alia, by one Richard Misuga Libano and one David Mumbone. Both of these two

individuals were armed. According to this witness Richard Misuha informed him that

if a person had been in Botswana such a person should meet the others in the bush

in order to cut Caprivi from Namibia. The witness testified that he wanted to refuse

but was reminded of an incident at Linyanti where a person had been killed. He was

scared. They then travelled in a vehicle, which belonged to Shadrack Chainga, to the

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rebel camp. At that stage Mukoya Franco, Austin Ziezo, Smith Makini and Zorrow

Kaine were also in the vehicle. At Makanga he boarded a TATA truck the property of

the Government of Namibia destined for Katounyana base. He observed four

vehicles. One of the vehicles was a white Toyota ‘open van’ which belonged to

Jimmy Liswaniso. He testified that when the shooting started at Katounyana he and

Hoster Shikunga ran away.

[454] During cross examination by Mr Samukange the witness testified that he was

forced to go to Katoungana that he was severely assaulted by the military police at

the village; that he did not tell the police that he had been forced when he was taken

to the police station two days later. During cross examination (by Mr Samukange)

the witness testified that he was forced to go to Katounyana; that he was severely

assaulted by the military police at the village; that he was assaulted by the police;

that he did not tell the police that he had been forced to go to Katounyana; that at

Ngwezi police station he was assaulted by the officers Chizabulyo and Evans

Simasiku (some of the investigating officers) ; that Evan Simasiku came to collect

him at his village in order to testify in court; that he lived in perpetual fear. The

witness agreed that he testified that he received some magic from an African doctor;

that no one had forced him to receive the treatment, it was done freely, and that his

understanding was that the treatment would make him invisible to police officers and

soldiers. The witness denied that the reason he wanted to be invisible was in order

to participate in the attack. This denial is implausible. The witness testified that the

reason he had been assaulted by the police officers was because he denied his

involvement in the attack on 2 August 1999; that he was assaulted for 2 days by the

military police with sjamboks; subsequently, (3 days later) he was picked up at the

village and taken to Ngwezi police station where Chizabulyo informed him to give a

full witness statement; that he understood that he would be a State witness; that

when during the questioning by the police he was denying a question or ‘refusing’

Chizabulyo slapped him on his face and then he decided to give a statement; he was

also kicked in his back. This witness showed scars in court which he testified was a

result of assaults perpetrated on him. This witness was not warned by the court in

terms of the provisions of s 204 of Act 51 of 1977.

[455] During cross examination by Mr Nyoni, the witness was confronted with his

statement in which it appears that on 31 July 1999 he had been abducted, that on 1 st

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August 1999 they were given lessons how to handle fire-arms and called for a

parade where they were addressed about the attack. The witness was referred to his

testimony where he stated that he was at Makanga for about 30 minutes and that his

version as reflected in his statement differs from that which was given in court. The

witness agreed. The witness stated that evidence was put into his statement by the

police. The witness was referred to a paragraph in his statement to the following

effect: ‘I know the following owners with their vehicles. Jimmy Liswaniso, Martin

Chainda’s motorvehicle, Toyota Bakkie, Toyota Bakkie for Kester Kabunga, GRN

TATA for Fabian Simiyasa. These motor vehicles were used by their owners’. It was

put to the witness that he said the vehicles were used by their owners that was

incorrect and that it was put there by the police.

[456] During the cross examination of Mr Dube, the witness testified that at

Katounyana base he was in possession of a stick to be used as a weapon in order to

beat policemen who had been shot and got confused, and that the witness would

then take the fire-arm of the policeman. It was put to the witness that he was

misleading the court when he testified that he was forced to be there and that he was

deliberately minimizing the role he played. The witness disagreed.

[457] Bornbright Mutendelwa Kufwa testified that on the night of 1 August 1999 he

was visited at his house by Richard Musuha who was together with another person

and he was informed to accompany them. Both of then were armed and he was in

fear. They went to the bush of Makanga, vehicles arrived there, they were divided

into groups and were informed which places were to be attacked namely Katounyala

Special Field Force base, the shopping centre, the NBC, the police station and

Wenela Border post. He was initially assigned to attack Wanela Border post by

David Mumbone, but was thereafter instructed to board the vehicle of Jimmy

Liswaniso, a white Hilux with registration number N 133 KM. He testified that he

knows Jimmy Liswaniso. They subsequently departed and he alighted at Waya-

Waya and proceeded on foot to Libula village in order to circumvent the roadblock at

the T junction of Kongola. At Liluba the same vehicle picked them up and off loaded

them at the Engine Service Station in Katima Mulilo. He testified that some of the

persons in his group were armed.

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[458] The witness testified that the persons whon he knew from his village and who

were at Makanga that night were: Sikunga Hoster Kambukwe Hastings, Muyumbano

Adams, Mikini Smith, Mutahane Herbert, Jummy Liswaniso, Luyanda Brendan,

Austen Ziezo, Ntaba Christ and Kufwa Roster. Persons from other villages who were

there were: Brian Mboozi; Liseho George; Daves Mujuwo, David Mubone and Brian

Mushandikwe. He testified that Brian Mushandikwe was armed. This witness was not

warned in terms of s 204 of Act 51 of 1977.

[459] Given Lufela Ndungati testified that on 31 July 1999 he was at his village

when a man, Adams Muyumbano, collected him during the night and informed him

that they were going to the bush of Makanga. He was forced to go with and walked

on his own. At the roadside they met persons, inter alia Mikini Smith, who had a

weapon in his possession. At Makanga they were divided into groups. In his group

were Roster Kufwa, Jimmy Liswaniso, Aggrey Makandano and Osbert Likanyi. He

testified that he knew these persons. Aggrey Makandano and Osbert Likanyi were

armed and Jimmy Liswaniso had a ‘shell’ in his possession. He recognised the

vehicle of Jimmy Liswaniso, but the driver was unknown to him. He boarded this

vehicle. His group was supposed to attack the police station. They drove until Waya-

Waya where the alighted in order to circumvent the roadblock. The vehicle picked

them up at Liselo and took them to the police station.

[460] Ivan Jona Twabulamayo Mate testified that he returned to Namibia from

Botswana through the process of repatriation and he deposed to two statements,

one in 2001 and the second one in 2004. He testified that he went to Botswana

because he heard he could receive military training and education there. During July

1999 during the night he was picked up by Adams Muyumbano and Mikiti Smith in

order to go to Sachona. The driver was one Kavo Mowa. At Sachona they found a

witchdoctor who gave them ‘medicine’ in order to see the enemy first before the

enemy could see them and that he spent two days there and then left for Makanga.

He travelled in the vehicle of Jimmy Liswaniso from Sachona to Makanga, a white

Hilux with registration number N 133 KM. He could not see who the driver was. At

Makanga, David Mumbone entered his name in a book and was shown how to

handle a weapon. The persons were divided into different attack groups. He was not

in a group because he had a problem with his eyesight, could only see

approximately eight meters far, and that he informed David Mubone about it who

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informed him to go with the witchdoctor to Danbar Mushwena’s house. They

travelled with the vehicle of Kester Kubanga who dropped them at the house of

Danbar Mushwena, the vehicle was driven by Danbar Mushwena; that during the

State of Emergency he was at the village and was assaulted with sjambocks by the

police to the extent that the scars are still visible.

[461] During cross-examination he testified that his first statement was taken at the

police station; that he was not assaulted at that stage; that the police told him that

they knew what happened; that there was nothing he could do but to follow what

they were saying; that he considered himself at the mercy of the police; that he had

no option but to accept the story the police were telling him; that the police

approached him in connection with a second statement since they informed him that

the first statement concerned what happened at Makanga and they wanted

information about what happened at Sachona; that they informed him that they knew

what transpired at Sachona and wanted him to confirm that story; that he was taken

to the police station; that he was locked up in the police cells for one night because

he had refused to give them a statement; the next day the statement was recorded;

that the police informed him that so long as he would refuse to give a statement he

would remain in the cells; that it was a serious invasion of his rights and the

detention caused him a measure of fear; that he had no option but to confirm what

the police was saying and that even if the information were false he would have

confirmed it.

[462] During re-examination the witness testified that the contents of both the

statements emanated from him and that the police officers who had assaulted him

were not the same police officers who took down his statement. Thomas Franko

Mukoya testified that he was in the group destined to attack Mpacha (Military base).

The witness testified that he recognised the vehicle a white Toyota with registration

number N 133 KM as that of Jimmy Liswaniso which was driven by the owner

(Jimmy Liswaniso). This witness correctly identified the Jimmy Liswaniso in court as

accused no 58. This witness when he testified during his evidence-in-chief stated

that he gave his statement freely and voluntarily to the police. During cross

examination he admitted that he had been assaulted by the police prior to giving his

statement. The witness testified that he refused to give any information to the police

before he was assaulted. He testified that he was extensively assaulted over a

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period of one day, spent the night at a certain house and was picked up again by the

police the next morning. He testified that it was a humiliating experience. He was

assaulted because he denied knowledge of the incident and that the statement came

about as a result of force. He testified that when he was interviewed by the

prosecutor the previous day he did not mentioned the assault to the prosecutor, Mr

July, because the police had informed him that he should not even mention the

assault.

[463] This court stated the following on 11 February 2013 during its judgment in an

application in terms of s 174 of Act 51 of 1977:

‘[221] I have discussed the issue of torture and degrading and humiliating treatment

of witnesses (supra) and must mention at this stage that had the State presented the

evidence of this witness as the only evidence against the accused person I would have

disallowed such evidence and would have released the accused.’

[464] It is necessary to repeat what was said by this court at that stage at paras

[46], [47] and [48]:

‘[46] Article 8(2)(b) of the Constitution of Namibia provides that no persons shall be

subject to torture or to cruel, inhuman or degrading treatment and punishment.

[47] In the case of Jestina Mukoko v The Attorney-General an unreported judgment of the

Supreme Court of Zimbabwe delivered on 20 March 2012, Malaba DCJ in dealing with

section 15(1) of the Zimbabwean Constitution which is similarly worded as Article 8(2)(b) of

the Namibian Constitution, stated the following at p 32-33:

‘The obligation on the State, through its agents, not to admit or use in criminal

proceedings, information or evidence obtained from an accused person or any third party by

infliction of torture, inhuman or degrading treatment is not explicitly set out by a separate

provision in the Constitution. It would be contrary to the object and purpose of the prohibition

under s 15(1) of the Constitution to allow admission or use of such information or evidence in

any legal proceedings.’

[48] The Court continues at 33 (last paragraph) to 34 as follows:

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‘At various stages of the whole process of proceedings by which the State deals with

persons suspected of crime who are in the custody of police officers, the Constitution

imposes duties for the protection of the fundamental rights of the subject. The primary duty is

on the law enforcement agents not to abuse executive authority in the investigation of crime

by torturing or treating suspects in an inhuman or degrading manner to extract information or

confessions to be used against them in legal proceedings anticipated to follow the

ill-treatment. If the duty fails to achieve its intended purpose at this stage, the law imposes

the duty on public prosecutors not to admit or use information or evidence obtained from an

accused person suspected of having committed a criminal offence or any third party by

torture, inhuman or degrading treatment when making prosecutorial decisions. If the duty

fails at this stage the law imposes the duty on judicial officers. Eventually it lies with the

Court to intervene through the exercise of its original jurisdiction to enforce or secure the

enforcement of fundamental rights.’

The Court continues at 35 as follows:

‘Information or evidence obtained from an accused person or any third party by

torture, inhuman or degrading treatment if admitted or used in legal proceedings would

reduce s 15(1) of the Constitution to a mere form of words. As JACKSON J put it in the

dissenting opinion in Korematsu v United States (1944) 323 US 214 at 246 “once judicial

approval is given to such conduct it lies about like a loaded weapon ready for the hand of

any authority that can bring forward a plausible claim of an urgent need”. In People

(Attorney-General) v O’Brien (1965) IR 142 KINGSMILL MOORE J of the Supreme Court of

Ireland said that: “to countenance the use of evidence extracted or discovered by gross

personal violence would . . . involve the State in moral defilement.’ (See also Ex parte

Attorney-General: In re Corporal Punishment by Organs of State 1991 NR 178 (SC); S v

Likuwa 1999 NR 151; The Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment and Punishment, acceded to by Namibia during 1994).’

[465] It is necessary to determine in view of afore-mentioned passage what other

evidence implicated the accused person. It should be kept in mind that during the

s.174 application the credibility of witnesses were not assessed. Ruben Sikwala did

not identify the accused person. This witness was shown during cross-examination

to have contradicted himself and deviated from his witness statement in material

respects. In addition to this he had also been severely assaulted by the military

police at his village and also assaulted by members of the Namibian Police prior to

taking his statement. The same prohibition regarding the testimony of Mukoya would

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apply in his case. Bornbright Kufwa and Given Ndugati did not identify the accused

person in court. Their evidence corroborated each other in so far as the registration

number of vehicle of the accused is concerned. Both of them testified that the

registration number of the motor vehicle of the accused was N 133 KM. The accused

during his testimony conceded that he owned a motor vehicle with that registration

number during that time, but denied that anyone had borrowed this vehicle from him.

[466] When considering the evidence of three witnesses who testified that they had

been transported with the vehicle of the accused on the night of the attack the

following appears: Bornbright Kufwa testified that his group alighted at Waya-waya

were they were picked up again by the same vehicle and were off loaded at Engen

Service Station in Katima Mulilo; Given Ndugati and his group (which included

Jimmy Liswaniso) were taken to the police station in Katima Mulilo by this same

vehicle; Thomas Mukoya and his group were transported to Mpacha military base by

the same vehicle. The impression, from their testimonies, is created that all the

vehicles left Makanga at the same time. Their evidence becomes even more suspect

when regard is had to the contradiction between the testimony of Ndugati and that of

Mukoya. Ndungati testified the driver was unknown to him, whereas Mukoya testified

that the owner of the vehicle Jimmy Liswaniso himself was the driver. If Jimmy

Liswaniso was known to Ndungati why then did he testify that the driver was

unknown to him.

[467] The evidence of Mate must be viewed in the light of the facts that he was an

accomplice and a single witness. From the answers given during cross-examination

a distinct impression is created that the police had provided him with the information

which they wanted to see in his two statements and violated his right to freedom of

movement by detaining him in a police cell and in this way put pressure on the

witness to coo-operate with them. This witness stated that he would have done

anything to be released from the police cells. The testimony about the registration

number of the vehicle of the accused must be seen against this background, namely

that what appears in the witness statement was most likely information provided by

the police officers who recorded his statements.

[468] Mr McNally submitted that these witnesses were actual perpetrators of the

crime (of high treason) and their testimonies require particular scrutiny. Mr Mc Nally

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submitted that this was a case of mistaken identity and that this was so much

conceded by the State witness police officer Primus Amwaama where the following

appears at p 32989, lines 8-27 of the record:

‘And if on this deployment list there appears a name Jimmy Siswaniso you will agree

with me that is entirely different from Jimmy Liswaniso?... That is correct, My Lord.

And if the name Jimmy Siswaniso appears on the list you will agree with me that it cannot be

the same person that you refer to in this court as Jimmy Liswaniso? . . . It depends, My Lord,

but precisely I do agree with you.

So in other words we are talking about two different people here do you agree with me? . . .

There is a Jimmy Liswaniso and there is a Jimmy Siswaniso? . . . Correct.

And further at 32991, lines 18-20:

‘Now, you will agree with me Sir, that on that specific list Jimmy Liswaniso does not

appear. - - - Jimmy Liswaniso does not appear, My Lord.’

[469] The accused testified and denied any involvement during the attack or that his

vehicle could have been used as testified by the witnesses. The accused called his

wife Christina Nambo Liswaniso as a witness who testified that the accused, herself

and their children returned from the village Malengalenga on 1 August 1999; that the

vehicle was parked at the doorway of the courtyard; that he once lent his vehicle to

Chief Mamili during the month end of August 1999 and that herself and the accused

person do not belong to any political party. Mr McNally submitted that the State was

given to seize upon an apparent contradiction between the accused and his wife

where the accused testified that during July/ August 1999 he never lent his vehicle to

anyone. Mr McNally pointed out that by the time (ie month end of August 1999) the

attack was over.

[470] In my view, it should be apparent, from the evaluation of the evidence

presented by the State that this court cannot rely on the testimonies of any of the

witnesses called in order to prove any of the charges preferred against the accused.

Matheus Munali Pangula (accused no. 59)

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[471] Christopher Siboli testified that the accused, a police officer in Katima Mulilo,

was one of the persons who was looking for people to join the CLA. The witness

correctly identified the accused in Court. The witness testified that the accused

donated money during a meeting in order to acquire weapons. It was testified that

the accused attended a meeting at the new house of Muyoungo during 1997 where

the issue of secession was discussed.

[472] During cross-examination it was put to this witness that he name of Matheus

Pangula does not appear in his statement dated 23 March 1999 and the witness

agreed. It was put to the witness that the accused will deny that he was a recruiter

and mobiliser; that he will deny that he threatened the witness when the witness

came from Dukwe; that he was police officer and was not allowed to attend political

meetings of whatever nature; that if he happens to go to a meeting he would have to

go privately; that he was not a member of any political party- the witness replied that

DTA was his party; that he denied that he supplied any information about bases to

be attacked – the witness disagreed; that he only came to know the witness when he

had to question him in connection with theft – the witness asked: “Which theft ?”, but

this was not clarified.

[473] Lovemove Lutambo Litabula testified that during the year 1999 he was a

police officer at Katima Mulilo police station. At the time he testified he was a security

officer at De Beers Marine in Oranjemund. He testified than on 1 August 1999 he

was on duty as charge office sergeant. The accused was the shift driver whose duty

it was to collect and off-load those police officers who worked shifts. His (ie the

witness’s) shift ended at 14h00 and the accused was suppose to take him home but

he was taken home by the driver of the next shift since the accused was not there.

He testified that there was just one vehicle and the one driver would normally take

over from the previous driver, but he only saw the other shift driver with the vehicle

and no explanation was given. After lunch he returned to town and met Mushwena

Dunbar who asked him whether he could see him that evening. At around 18h00 he

went to the house of Mushwena since Mushwena had asked him to come to his

house but Mushwena was not there.

[474] Approximately 20h00 he found Mushwena driving a Ford bakkie of Richwell

Matengu. According to him Mushwena asked him to escort him. He agreed.

Mushwena drove up to the T-junction of Linyanti Road at Liselo where he parked the

vehicle next to the road. Mushwena asked him whether he knew that his (ie the

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witness’s) brother Messias was coming. Mushwena then went into the village and

returned. A Tata truck stopped a distance away ad Mushwena approached the GRN

truck and spoke to the driver. After a few minutes the truck left in the direction of

Mpacha. After a while another vehicle stopped. He recognised this vehicle as one

Allen Semeja used to drive. After 2-3 minutes Mushwena returned from this vehicle

and went back into the village. He later saw Mushewena driving this vehicle and that

there were people at the back of the vehicle they came to where he was sitting in the

vehicle. One Richard Shaweka came to the driver’s side. They then drove, and after

a while someone called his name and recognised the person as Aggrey Makandano.

He knew that Makendano was in Botswana. They drove up to the junction with

Ngoma road. At a busy area Mushwena told the drive to stop and told him that he

had to get off the vehicle and go with the group of people who were on the load box.

They all got off and they went into the bush area about 300m from the police station.

They went through the bush and after a while Makendano introduced him to the

group by saying: ‘This is Lovemore Litabula, he is brother to Messias’. According to

this witness his brother had earlier fled to Botswana.

[475] According to him they proceeded until Makendano informed him that they

were going to the police station and the he could go back home. He could observe

that some members of the group possessed fire-arms, some were without fire-arms.

Makandano had an AK 47 and he also observed a shotgun. When he left the group

was still there. Subsequently he heard a shot near the Shopping Centre and

thereafter rapid gunfire. He also heard shots from the direction of the police station.

He then returned to ‘Katima Base’ where he found Cst. Matongela and Cst. Mikini.

There was no conversation amongst them and he, himself, did not say anything.

The witness testified that he was ‘dumb-struck’. He stayed there until the morning

and returned to police station to report for duty. There he observed blood. The

soldiers were already there. The station commander Inspector Johnny Lifasi was

there. He observed a lot of ‘cartridges’. Thereafter operations started, patrolling the

area.

[476] The witness testified that he couldn’t tell whether the TATA truck observed by

him as the same truck used to be driven by Simyasa, but that it was similar. He

testified that at the stage he saw Mushwena with the vehicle of Richwell Matengu,

Matengu was not there. The witness identified Aggrey Makendano and Matheus

Pangula in court. During cross-examination by Mr McNally the witness testified that

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at the time of the incident he was a police officer for about 3 years and held the rank

of constable; that part of his duties involved reporting the commission of crimes;

protecting the community; that the swore to protect the “Namibian State”; that he

agreed that the had accompanied armed individuals to the police station; and that at

that stage there were police officers on duty.

[477] When asked what he thought these armed people was going to do at the

police station first stated that he was not aware of what was happening, but then said

that they were going to attack the police station. When asked whether it was not his

duty to have reported the incident to his colleagues the witness replied; “I feared my

life because things happened which I was not expecting to happen”.

[478] This court then had to direct that the witness answer the question. The

witness’s reply to the question was that he didn’t do anything. The question whether

he did not realise when arrived at Katima Base where he could get help, had to be

asked several times before the witness answered: “No I didn’t even think of that.” It

was put to the witness that not only did he fail to summon help and assist his

colleagues but that he concealed a crime. The witness disagreed. The witness

admitted that it is a crime to attack a police station, that he knew about the attack,

that he knew the identity of some of the perpetrators, and that he did not report that

crime. It was pointed to the witness that he deposed to his witness statement only in

2001 about 2 years after the incident to which the witness he replied that he feared

for his life. The witness was asked when he arrived at the police station the next day

and saw the blood of his colleagues having been spilled all over the place, whether it

not occur to him to come clean and to assist in the investigation. The witness just

replied that he did not do that.

[479] It was put to the witness that he was a co-perpetrator of the crime. The

witness replied that the was not prepared to tell some. It was put to the witness that

he should be an accused. The witness disagreed. I agree with Mr McNally that this

witness was a co-perpetrator. What is however apparent is that it was not disputed

that the accused had absented himself from duty. The witness Lubinda Mbumwae

testified that he was apprehended on 2 August 1999 by NDF soldiers and was

detained in the Katima Mulilo police cells. In that cell he found someone with a police

uniform who he recognised as the accused person whom he referred to as Bernard

Matheus Munile Pangula, and he then asked the accused why he was there. The

accused than explained than on the Sunday he had obtained the vehicle of Danbar

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Mushena (from one Henry Liswalelo) and took food to his mother who resided out of

town. On his return he was told to keep the vehicle and went to NHE where was

staying at that time because he had shifted form Katima Base. At midnight there was

a knock on his door. It was Dunbar Mushwena who asked him to ‘escort: him

somewhere’. They drove and when they reached a certain place called Ruliba he

was told to stop. Dunbar Mushwena got off the bakkie and went into the bush and

returned with armed people. He was then commanded to go to town and they went

near the Government Garage. Here he was told to get out of the vehicle. The armed

individuals also got form the vehicle and told him to go with them in order to fight,

where upon he asked them how we could fight without a fire-arm (gun). They

nevertheless proceeded towards the police station to a bushy area. When these

individuals left for the police station he managed to escape and went where he used

to stay at Katima Base. A few minutes later he heard gunshots. Early the next

morning he went to the police station where he was told to take some of the rebels

who had been arrested to the cells. The witness identified Bernard Matheus

Pangula as accused 59 in court.

[480] During cross-examination, by Mr McNally, the witness testified that when he

entered the cells he observed the uniform and went to the accused; that the

conversation took place on his arrival in the cells; that he also found in the cells were

Lupalezuvi and Tom Ben Munzie; that this was on 2 August 1999. The witness was

confronted with an entry in the occurrence book which reflects that the accused was

arrested on 3rd August 1999 and that he couldn’t have spoken to him on 2 nd August.

The witness insisted that when he entered the cell he met the accused. He was also

informed that Tom Ben Munzie according to the police occurrence book was only

arrested on 5 August 1998. The witness replied that he did not know Munzie at that

stage. The witness was referred to the testimony of Litabula who testified that he

had accompanied Dunbar Mushwena and the people who had attacked the police

station and that if Pangula was together with them, Litumbula would have mentioned

that since the two of them worked together in charge office. The witness said that he

could not comment and stated the possibility that Mushwena was involved in another

trip.

[481] It was further put to the witness that the accused never had such a

conversation with him. The witness insisted that what he testified about he had

heard from the accused, adding that he would not betray the accused who used to

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assist him to buy food. This Court subsequently during a trial-within-a-trial admitted

a statement made by this witness to Inspector Lifasi as a confession.112 This

statement relates to question posed to the accused when he arrived at the police

station by Inspector Lifasi, firstly regarding his failure to report on duty on 2 August

1999 form 06h00 until 14h00, and secondly why he had parked in front of the police

station and left before he was relieved. The following appears from p 3 to 4 that

judgment: “In reply to the first question accused 59 replied that he was afraid of the

shooting that took place in Katima Mulilo town. In reply to the second question

accused 59 related to him that he had received a message from his hamlet in

Kalumba area that his people are starving. He approached Mr Dunbai Mushwena

who provided him with a motor vehicle. He bought maize meal and delivered it to

Kalumba. On returning the motor vehicle he was requested by Mr Mushwena to

accompany Mr Mushwena. Accused no. 59 was requested to drive toward Mpacha

where he was told to stop the vehicle. Accused 59 when saw armed men coming

out form the bushes and got into the vehicle. He was then told to drive to Katima

Mulilo. Some of the armed men disembarked at a place approximately 500 m – 800

m from the police station and he off loaded a second group at the Namibian

Broadcasting Corporation (It is common cause that the NBC was also attacked that

same evening) He then returned home. When questioned after observing that he

was transporting ‘rebels’, why he didn’t report the matter to him (i.e Inspector Lifasi)

accused no. 59 replied that he was afraid that he might be killed. Inspector Lifasi

testified that having heard what accused no. 59 conveyed to him he became

‘suspicious’.

[482] The accused testified that he was arrested on 3 rd August 1999 and was

employed as a police officer and that had been in the police for almost 9 years. The

accused denied that he attended any political meeting. He denied that he

transported rebels to various places of attack; that at the time of the attack he was at

home and never participated in the attack; that on 1st August 1999 he was on duty

from 06h00 until 14h00; that at 14h00 the person who was supposed to relieve him

did not ‘turn up”, and he had to continue working until between 15h00 and 16h00

when the supervising officer sgt. Muyenga told him that the relief drier arrived late

from the farm and that he had to go and fetch him at home, which he did. This driver

then “dropped” him at Katima Base where he stayed; that during the early morning

hours of 2nd August 1999 he was with a boy, Moren Tuombale and they stayed 112 See judgment delivered on 16 July 2007.

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together until sunrise. This accused testified that he made the confession in order to

save himself from further beatings by Inspector Lifasi; that during the early morning

hours on 2 August 1999 he phoned the police station but received no answer; that

after sunrise a police officer, whose name he couldn’t recall, answered the phone

and he informed this police officer that there was ‘bush’ between his house and the

police station and that he couldn’t walk through the bush and asked to be picked up;

he was informed when a vehicle was available he would be picked up, so he waited

at home.

[483] Later during the day he decided that he had to go to the police station and

went to work where he performed charge office duties until 19h00 when Chief

Inspector Lifasi came and questioned him about his whereabouts on the day of the

attack; that he had informed Chief Inspector Lifasi that he as at home and knew

nothing of the attack; that Lifasi told him he was lying because he knew very well that

the people who attacked the Caprivi was the Mafwe people because the President of

the DTA is Mafwe and was already in Botswana; that he knew Lovemore Litabula,

they worked together the previous morning (1 August 1999); that he was not in the

company of or transport rebels who attacked the Katima Mulilo police station o 2nd

August 1999.

[484] During cross-examination the accused agreed that his responsibility is to

protect those he was “expected to protect’, that that particular responsibility he had

to perform conscientiously; that he knew the accused Matheus Sesesle and

Manyemo as former colleagues; that during 1998/1999 as police officer he became

aware of people “running” to Botswana; that the death of Victor Falali had been

reported to the police station; and that a group of 92 individuals left because of that

killing;

[485] The witness testified that he was unaware of the fact that rebel base had been

set up by the CLA across the Caprivi Region; that he did not know that the UDP

intended to break away from the DTA; that he was not aware of political meetings

that had been held during 1998-1999.

[486] The witness admitted that he was in possession of a fire-arm R 5 assault rifle

on 2 August 1999. The accused was asked why he had received an automatic

assault rifle on 30 July 1999. He explained that the Shift Commander Lovermore

Litabula instructed him to get three more weapons from the firearms store to be

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distributed amongst the charge office personnel, since all security forces were

informed that there was an impending attack on Katima Mulilo, but the date was

unknown; that by 30 July 1999 he was aware of the attempt to secede the Caprivi

Region; that when he booked these rifles out he signed the fire arm register; The

accused agreed that the fire arm register reflects an entry made on 30 July 1999 that

a fire-arm with serial number 309217 was removed from the fire arms store and that

he signed for such fire arm.

[487] In respect of another entry in respect of a R5 rifle with serial number 302641

the accused stated that he couldn’t determine who signed for that rifle but that it

appears that the date it had been signed for was 8 February 1999. The accused

agreed that it is reflected in the firearms register that this fire arm went missing from

the police station in Katima Mulilo and that he could not deny that it went missing. It

appears form Ex EGV, that this rifle was issued to “C.O” (Charge Office?) on 16

October 1998. An entry made under the column when the firearm was handed, in it

reflects: “99.02.08 missing”. Someone signed for this firearm on 16 October 1998

and never returned it. It was put to the accused that a firearm with serial number

30264 from documentary evidence was found in possession of his co-accused John

Samboma. This accused referred to testimony to the effect that Sambona had no

fire arms on his return from Zambia. The accused was then referred to a Pol 7

register where in an entry it is reflected that a rifle with serial number 302641 was

found in possession of John Samboma. The witness agreed that that is what is

reflected in the register. The name and address of the finder (of the rifle) is reflected

as “Zambian Police”. The accused denied the evidence of Siboli that he attended

any political meeting. He gave as reason for Siboli testifying against him, that Siboli

testified for the money and that all the state witness who came were paid. My

impression from the answers given was that the accused referred to the normal

witness fees paid to state a witnesses who testify in criminal proceedings.

Nevertheless the accused testified that Siboli needed some money and that there

was loose money in the hands of the police.

[488] The accused testified that Danbar Mushwena is his uncle but that he had

never used that vehicle since he had a vehicle of his own. The accused further

denied that he had used that vehicle on 1st August 1999. This was however not put

to Danbar Mushwena during cross-examination. The witness was referred to the

testimony of Inspecter Lifasi to the effect that he personally went look for the

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accused on 2 August 1999 but that the accused was not at home. The accused

replied that the witness (Lifasi) misled the court. When asked why this was never

put to Lifasi, and after several attempts by the prosecutor to get an answer, the

accused a simply agreed that it was never put to the witness.

[489] It was put to the accused that Lifasi testified that he had not beaten the

accused person. The accused replied that several state witness testified about the

assaults. It was put to the accused that in his civil claim against the Government he

did not allege that John Lifasi had assaulted him. The accused first replied that in the

civil claim the allegation against John Lifasi was that Lifasi pointed a firearm at him.

The accused subsequently conceded that there was no allegation that John Lifasi

had assaulted him.

[490] It was put to the accused that he transported rebels on 2 August 1999 to the

police station and to the NBC and at the stage Inspector Lifasi could not have known

that he had transported rebels. The accused referred to the fact that his cousin had

his motor vehicle that evening and gave an extensive explanation. When it was put

to him that the vehicle of Dunbar Mwashena was a different vehicle the accused

gave a very sarcastic answer referring to the fact that he was a a good driver where

four vehicles were involved, that he was an invisible driver, was everywhere and

drove four cars at the same time.

[491] The accused was referred to the testimony at Lovemore Litabula who testified

that he (ie Lovemore Litabula) was taken home by the drive, George Kalundu,

contrary to the evidence of the accused that he took him home. The accused was

asked why this was not put to Lifabula during cross-examination. The accused

replied that he couldn’t recall since it was a long time ago. The accused was further

confronted with the testimony of Lubinda Mbumwae about what he had informed him

regarding his assistance to the rebels.The accused gave an incoherent answer, inter

alia, referring to the fact that he was feeding Libinda like his own son. This

corroborates the evidence of Lubinda Mbumwae on this point.

[492] Moven Siwamezi Tuobale was called as a defence witness and testified that

on 1st August 1999 he slept at the house of the accused. On the evening of 1 st

August 1999 they watched television and went to sleep between 22h00 and 23h00.

At round 03h00 to 04h00 he heard a “big sound” that he had never heard previously.

He then called the name of the accused person, who answered. They couldn’t sleep

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again. “Past 06h00” a Chevrolet (motor vehicle) came and picked up the accused

person. He thought that the accused was going to work. Since that day he had never

seen the accused again. This witness testified that the three children of the accused

were also in the house.

[493] What is immediately apparent from the testimony of this witness is that

according to him the accused was picked up at 06h00 by a Chevrolet and the

witness was under the impression that the accused went to work. This is

contradicted by the evidence of the accused himself who testified that he went to the

police station by himself late that day after no one came to pick him up that morning.

Furthermore the testimony of this witness that the accused answered him between

03h00 and 04h00 does not exclude the fact that the accused participated in the

attack earlier that evening. In his confession the accused person explained his

participation in the activities the previous evening.

[494] It was submitted by Mr McNally, that a court may reconsider its findings at a

trial-within-a-trial in the light of subsequent evidence presented during the

proceedings. This is certainly a correct statement of the law. I have re-considered

the evidence as a whole and must say that I am not convinced that there is evidence

which compels me to come to a different conclusion. The confession in my view

remains admissible evidence against the accused person.

[495] Criticism of the evidence of Lubenda Mumbwae especially his evidence that

he had a conversation with the accused on 2 August 1999 is well-founded since it is

common cause that the accused was only arrested on 3 August 1999 and couldn’t

have had a conversation of with the witness on 2 August 1999. I made mention in

my judgment of 10 July 2007 that the statement of Mbumwae was obtained on 4

June 2007 about 7 years and 10 months after his arrest and that although one

cannot exclude the possibility that a person may vividly recall events which

happened years ago it is also a known human trait that one’s memory fades with the

passage of time, especially where those events have not been reduced to writing

form which one may later refresh one’s memory. What is however is significant form

the testimony of Mtumbwae and what the accused has informed Inspector Lifasi are

the similarities between these two versions. There was no suggestion that the police

had prescribed to Mbumwae what to say in his statement or in court.

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[496] I am of the view having regard to the totality of the evidence that the version

of the accused is not reasonably possibly true and should be rejected. I am satisfied

that the State succeeded in proving that the accused had the necessary hostile

intent, committed an overt act and committed the charges preferred against him.

George Kasanga (accused no. 77)

[497] Mwisepi testified that the accused was in Dukwe and was one of the persons

who gathered there with the intention to secede the Caprivi Region. This witness

identified the accused person in court. During cross examination by Mr McNally it

was put to the witness that the accused will deny that he was with the witness in

Dukwe with the intention of secede the Caprivi Region. This witness disagreed with

this statement.

[498] Kingsley Simwanza Kalundu testified that one George Kasanga was a

traditional healer who treated persons including the witness himself to be invisible to

their enemies. The witness testified that the accused told them that they should go to

Angola to get training and thereafter ‘must come back to Namibia and ‘fight the

nation of Namibia in order to liberate Caprivi’. This witness when given the

opportunity to identify George Kasanga was unable to do so.

[499] Avelino Masule was warned in terms of the provisions of s 204 of Act 51 of

1977. This witness testified that on 22 August 1999 he went to the house of his

friend George Kasanga at Cowboy Compound in Katima Mulilo when he arrived

there two boys informed him that Kasanga was inside the house with the ‘big man,

Mr Muyongo’. He waited outside. After a while Muyongo came out and drove away.

The accused informed him that he needed assistance since they would be going to

Singalamwe. Two vehicles were parked there namely an Isuzu 4ᵡ4 and a Toyota

Land Cruiser with GRN number plates. One of the boys went with George Kasanga

in one vehicle and the other boy was with him following the vehicle driven by

Kasanga. They passed a police station check point and crossed into Zambia and

drove next to the Kwando river until they reached a certain point where they

encountered eight boys dressed in UNITA uniforms. Six wooden boxes were loaded

onto the vehicles, three boxes in each vehicle. The boxes were not opened but he

knew that there were fire-arms in those boxes. They returned to the house of the

accused where the boxes were off-loaded. The witness testified that the next

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morning the accused informed him that there were firearms in those boxes and told

the witness not to tell anybody about this. The accused then gave him N$ 50.00. The

witness testified that he asked the accused whether the firearms were still at his

house and the accused replied that the same night, after the witness had left, he

took the firearms to the house of Chief Mamili.

[500] This witness identified George Kasanga as accused no 77 in court. This

witness testified that he is an Angolan national and he and the boys communicated

in the Shimbundu language. The witness testified that he knew the accused since

1989 when he arrived in Katima Mulilo. During cross examination by Mr McNally it

was put to the witness that the accused will deny that he ever took the witness along

to accompany him to collect boxes. The witness replied that he knew that to be the

case (as testified by him). It was further put to the witness that the accused will deny

that he gave him money for whatever purpose. The witness confirmed that he

received money from the accused.

[501] The accused testified that during the year 1999 he was employed by Rumdel

Construction as an excavator chain operator; that he went to Dukwe on 29 March

1999 because he was hunted by the Special Field Force members and the police

because the police used to come to his house and asked him to point out the

soldiers of Muyongo whom he did not know. He returned through repatriation on 15

July 1999 and he resumed his work at Rumdel Construction. The accused denied

that he was a witchdoctor; that he did not know about plans to secede the Caprivi

Region since he is not a Caprivian but hails from the Kavango Region; that on the

night of 1st August 1999 he was at home with his wife. The accused denied that he

received boxes containing fire-arms from UNITA, and wanted to know why the

witness had not reported him to the police.

[502] During cross examination, the accused testified that he was never in a military

or police force; that he did not know the witness Masule before he gave his

testimony in court. When the accused was asked why the witness Masule was never

during cross-examination confronted with the fact that he never knew the witness,

the accused replied that there was no need to ask that question by counsel. The

accused replied that he was aware of the fact that people were leaving for Botswana

and that each individual went there because of ‘certain circumstances’; that he

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returned because Minister Jerry Ekandjo promised that no one would trouble them

on their return home; that he did not know Mwisepi when he was in Dukwe and only

came to see him when he testified in Grootfontein; that he was born on 8 April 1948

and was 64 years old; the accused admitted that he knew Mishake Muyongo and

Geoffrey Mwilima as parliamentarians, but denied that Muyongo ever visited his

house; he denied that he collected boxes of fire-arms after he had been visited by

Muyongo and that the testimony of the State witness was a fabrication; the accused

denied giving any money to the State witness. The accused admitted that he crossed

into Botswana at a place called Parakarunga, a place not gazette as a point of entry,

adding that no one who is fleeing would go through a ‘gazette cross-point’. The

accused testified that when he left for Botswana he did not know about a refugee

camp there.

[503] The accused denied that he followed people who supported the idea of

secession. It was submitted by Mr July in his heads of argument that the accused

admitted that he crossed the border of Namibia into Botswana at a place other than

a gazette point of entry. It was submitted that his is not only one of the charges

against the accused but also constituted an overt act to the count of high treason

and that the accused had the necessary hostile intent. It was further submitted that

those accused who found themselves in Dukwe camp had gone there with the

purpose of seceding the Caprivi Region from Botswana. It was submitted by Mr July

in his heads of argument that when this accused went to Botswana he might not

have had any hostile intent but that the evidence before court is that those who had

been lured to Botswana were soon informed of the purpose why they were there and

then formed the required hostile intent. I agree with Mr July that there is no evidence

that when the accused departed for Botswana he had the necessary hostile intent

but I disagree that there is any evidence from which it can be inferred that the

accused person subsequently formed the required hostile intent. In this regard it was

submitted by Mr McNally that the accused gave reasons why he had gone to Dukwe

and this was not challenged by the State and that the accused also gave reason for

his repatriation.

[504] It must be observed that Mwisepi’s evidence that the accused was one of

those who had gathered there in Dukwe with the intention to secede the Caprivi is a

general statement devoid of any particularities. Mr McNally further submitted that

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Masule never testified that he saw any fire-arms inside those boxes and that his

evidence that he was given money was challenged by the accused person. I need

not evaluate the evidence of Kalunda since this witness did not identify the accused

person. In respect of the evidence of Masule, Mr McNally submitted that the denial

by the accused of that witness’s testimony was never discredited and that there was

no reason why this court should hold the evidence of Masule over and above the

evidence of the accused. Mr McNally submitted that the accused has not

contradicted himself and that he was not discredited in any way.

[505] In respect of the alleged journey into Zambia in order to collect the six wooden

boxes and what transpired thereafter, the witness is a single witness and the

accused denied that version. It is not correct as submitted by the State in their heads

of argument that there is no evidence that challenges the State’s case in respect of

the testimony of Masule. It was also submitted by Mr July that the suggestion by the

accused that the witness did not report him earlier should be seen within the context

of what the accused has asked the witness not to do and paid him N$ 50.00. This

may be a valid observation but does it show that the accused was an untruthful

witness to the extent that this court should reject his denial that Masule and himself

embarked upon a journey to Zambia? I do not think so.

[506] The State is saddled with an onerous duty to prove the commission of an

offence beyond reasonable doubt, whereas an accused has no duty to prove his

innocence. I am not satisfied that the State has succeeded to prove an overt act and

hostile intention by the accused person. What is however admitted by the accused

was that he wrongfully and intentionally departed from the Republic of Namibia at a

point other than a gazette exit point.

Richard Simaata Mundia (accused no. 104)

[507] Christopher Lifasi Siboli testified and identified the accused as a person who

was willing to see the region seceded and was also identified as a member of

Kopano ya tou. The witness testified that the accused was a recruiter and a

transporter. The accused testified that in 1997 chief Boniface Mimili travelled to

Barotseland, Zambia for discussions concerning the secession of Caprivi from

Namibia and joining Barotseland in Zambia. He testified that the accused had

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escorted the chief. When the chief returned he was welcomed by his subjects at

Wenela border post one of whom was Berhard Maungolo. The witness testified that

when the Chief returned, he (ie the witness) did not have a conversation with the

accused. The witness testified that during 1998 the accused attended a meeting at

Lisikili where the issue of secession was discussed.

[508] The witness testified that a ‘good number of people’ gathered at Shell Filling

Station in Katima Mulilo to be transported to the CLA base in Singalamwe. There

were vehicles ready to transport these people. The accused was present there and

had a fuel order. The witness testified that a white man Norman Justus also arrived

there and spoke to the accused. The witness testified that the accused was one of

the persons who secured people to be taken to Angola for the acquisition of

weapons and military training during the year 1997. The witness testified that during

the year 1998 the accused was employed at the Ministry of Education and attended

a meeting where the theft of diesel from the Government which diesel was to be

exchanged for weapons in Angola was discussed. The witness testified that during

1998 the accused arrived at Zambezi filling station with a Government order book for

fuel which was filled in 6 ᵡ200 litre drums which book was eventually signed by

accused no 93. During cross examination the witness testified that he was not close

enough to Norman Justus and the accused to hear what they were talking about.

[509] Nasco Liswaniso Chombo was warned in terms of s 204 of Act 51 of 1977. He

testified that during December 1998 he was at his village Lisikili, he was in the

company of one Christopher Simataa Muswea busy drinking when Richwell

Mukungu, Richard Mundia, Johnny Puteho and Sherlock Sinfwa told them that they

were ‘lacking behind’ in that area, and informed them that Caprivi would be cut from

Namibia. They said that they would secure a vehicle to take them to Botswana. The

witness testified that they respondent by saying that they would wait. Richwell

Mukungu told them that they would be trained as soldiers in order to come and ‘cut

Caprivi’ in Katima Mulilo. Richwell Mukungu, informed them that the ‘cutting’ would

be achieved by way of ‘fighting using firearms’ against the Namibian Government.

Richwell Mukungu Matengu is the full name according to this witness. The witness

testified Richard Mundia used the same words. The witness testified that at a later

stage a white Mazda ‘open van’ driven by Richwell Mukungu Matengu arrived.

Richard Mundia was also in the vehicle. The witness and Christopher Simataa

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Muswea boarded the vehicle and they drove to Namalovi where they found 19

individuals who also boarded the vehicle which headed in the direction of

Masokotwane. They were dropped off at Masokotwane and Richard and Richwell

returned. They spent the night at Masokotwane at the village of Gasper Machana

who escorted them the next morning to the Chobe River where all of them crossed

into Botswana. It was 23 December 1998. They arrived at Dukwe refugee camp

where they stayed for five months. Nothing happened at the camp and he returned

to Namibia through repatriation. On 2 August 1999 he was at his home and was not

involved in the attacks. This witness identified Richwell Mukungu as accused no 105

and Richwell Mundia as accused no 104.

[510] During cross-examination by Mr McNally the witness testified that he received

no military training in Dukwe. When the witness testified that he heard about the

issue of secession from Richwell and the accused, he was referred to his statement

which reflects that the issue of secession came to his attention through the radio and

the newspapers when the 92 rebels left Botswana in October 1998. The witness

agreed that he heard about the issue of secession prior to him having a conversation

with the accused during December 1998. It was put to the witness that the accused

will deny that he ever transported them to Masokotwane. The witness disagreed with

this statement.

[511] Voster Mukungu Nawa testified that one Richard Mundia told him during

December 1998 to go to Botswana in order to fight for his country. According to him

Richard Mundia informed him that he would receive training in firearms. This witness

was unable to identify Richard Mundia in court.

[512] Vesmus Haipa testified that he is a member of the Namibian Police Force and

was stationed at Katima Mulilo during the year 1999. On 27 October 1999 at 14h00

he was together with Inspector Simasiku and went to the house of the accused

person where he found his wife ‘Grace’. At that stage the accused had been

arrested. Inspector Simasiku explained the purpose of their visit. She agreed and let

them into the house. During the search the wife of the accused was present and they

informed her what documents they intended to take. These items were taken to the

police station and booked into the Pol 7 register. He testified that he asked the wife

of the accused who was the owner of the items, seized and she replied that it

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belonged to the accused person. According to the witness, the items seized were

booked in the Pol 7 register under entry Pol 7/340/99. I must state that these

documents contained no incriminating evidence.

[513] The State in its heads of arguments in connection with the testimony of Oscar

Mwisepi refered to the record113 and contends that the accused was in the company

of John Samboma (accused no 54), Bennet Mutuso (accused no 69), Richard Libano

Misuha (accused no 48) and Oscar Muyuka Puteho (accused no 49) near Masida

with weapons after the attack on Katima Mulilo. This is incorrect. The record reflects

that the witness Mwisepi found five persons near firearms and he named them as

John Samboma, Richard Samati, Bennet Mutuso, Richard Misuka and Oscar

Muyuka Puteho. The witness also referred to Richard Samati as John Samati114 and

the same names are repeated. 115 The accused did not identify Richard Misuha

neither did he identify the accused person.

[514] The State further in their heads of arguments submitted that the motor vehicle

of the accused was at Makanga on 1 August 1999 where the final preparations were

made for the attack the next day. The record does not support this submission. It

was further submitted by the State that Ex ACC was found in the house of the

accused person. This is incorrect. The police officer Vesmus Haipa testified that it

was found in the house of Geoffrey Mwilima (accused 68).

[515] The accused testified that he was arrested on 26 August 1999. He was

employed by the Ministry of Education as a senior driver and he was a member of

the DTA. The accused denied that he attended any political meetings during 1997

and 1998 where it was conspired to overthrow the Government of the Republic of

Namibia by violent means. The accused denied that he influenced people to go to

Botswana in pursuance of a conspiracy to secede the Caprivi from Namibia. The

accused denied that he transported persons to the Namibia/ Botswana border in

pursuance of the conspiracy and denied that he donated diesel to be exchanged for

firearms. The accused denied the evidence of Siboli that he was a member of

Kopano ya Tou, adding that he had never joined an army or the police force; denied

that he attended a meeting in 1998 at the DTA office where there was a discussion

that people should steal diesel; denied that he had a fuel order book at Shell Filling

113 P 719, lines 10-23.114 P 765.115 P 836.

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Station; and he denied attending a meeting at Lisiskili where an agreement was

reached to secede the Caprivi through fighting. The accused denied, as testified by

Nasco Chombo, that the accused had informed him that Caprivi would be cut; that

he did not have any knowledge of a possible attack in Caprivi or plans to violently

secede the Caprivi Region; that he never recruited people to go to Botswana or to

join a military force.

[516] During cross examination, the accused testified that the hails from Muziba

village in the Lisikili area; that he acquired a Namibian identity document on 15 July

1992; that he was not present at a meeting where a decision was taken to separate

the UDP from the DTA; that in 1975 he went into exile to join SWAPO in Zambia;

that he attended one meeting of DTA in 1994 adressed by Mr Dirk Mudge; that he

attended no other DTA meetings; that he know Muyongo as a parliamentarian; that

he never spoke to Muyongo; that he drove Muyongo and Chief Mamili to South

Africa in 1998; that he did not know Thaddeus Ndala; that the passangers in his

vehicle were the Chief, Muyongo and councilor Francis Sizimbo; that when they

arrived in South Africa they found Victor Mwituti, Afred Chilinda, David Siseho,

Albertina Musukubiri and David Muchali were already there – there were eight

people in the delegation; that he does not recall that Ndala formed part of the

delegation; that he cannot dispute neither can he confirm that Ndala was part of that

delegation; that he does not know whom they went to see in South Africa- he was

only the driver; that he never said during the bail application in Grootfontein that

there were eighteen persons in the delegation; that he did not know whether a Mr

Mutengu was part of the delegation.

[517] The accused testified that after the proceedings on the bail application was

given to him, he pointed out to counsel the name Richard Mukungu whom he did not

know. It was put to the accused that if in the bail proceedings no reference was

made to Richwell Mukungu he could not have pointed that out to counsel. The

accused agreed. It was put to the accused that in the bail proceedings reference is

made to a Mr Matengu only and not Mr Makungu. The accused replied that Matengu

Richwell Makungu is the same person and this person was not part of the

delegation. The accused was asked whether he knew Matengu Richwell Makungu

twice but evaded the question. When asked for a third time he explained that when

he boarded the vehicle from his village to Ngweze he ‘came to know’ the Matengu he

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used to work with at the Ministry of Education. The accused testified about the

vehicle he boarded on the day of his arrest and that Matengu Richwell Makungu is

accused no 105. The accused was asked whether he has known Matengu Richwell

Makungu before his arrest and the accused replied that he came to know him at

work at the Ministry of Education. When asked whether Matengu Richwell Makungu

was not his brother-in-law, the accused confirmed it. When asked why he told the

court he met him on the day of his arrest, the accused gave an inconsequential

reply.

[518] The accused was referred to the answer given when asked whether he had

heard about the UDP to which he had replied that he heard that it was a party. This

was contrasted with his reply to the same question during the bail application when

he stated that he heard about it in 1985 until it was ‘demised this year’ (1999). The

accused denied that is what he said during the bail application and blamed it on a

wrong interpretation by the interpreter (in the bail application). The accused testified

he only came to hear in court that Muyongo and the Chief left for Botswana, that he

never heard of it previously; that he did not know about a group of 92 persons who

crossed into Botswana from Namibia; that he did not know that subsequently there

was an exodus of people to Botswana; that he only came to hear about it in court;

that he knew nothing about the issue of secession; that he only came to hear about it

in court; that prior to his arrest he knew nothing about plans to secede the Caprivi

Region.

[519] The accused was referred to a question whether he had been outside

Namibia and his reply that he was in South Africa and Zambia and was referred to

this reply to the same question where he also included Zimbabwe. The accused

replied that it was ‘mistakenly’ omitted. The accused was referred to his testimony

that the last time he was in Zambia was in 1975 while his answer to the same

question was July 1999. The accused replied that he took drought relief food for

school children. The accused denied that he had ever been to Angola and was

referred to Exhibit EGF a diary of one of the accused persons, Ndala, that he was

part of a group that went to Angola. The accused replied that he does not know how

it came about that his name appears in that diary. In the diary it appears that on 15

August 1998 he was part of a group consisting, inter alia, of Ndala, Muyongo,

Walibita and Samboma who went with the aim to obtain overall support in connection

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with the problem in Caprivi. The accused denied that he was on that trip. The

accused testified that he has no knowledge that the CLA had sought assistance from

UNITA in 1998. The accused testified that he does not know the Masokotwani areas,

and that he was only at the school; the accused denied the evidence of Siboli that he

was a committee member of Kopano Ya Tou since he never joined an army when he

returned to Namibia and that the evidence before court is that all who belonged to

Kopano Ya Tou were ex-soldiers. The accused denied that he supported the idea of

secession as testified by Siboli. The accused was reminded that this was not put to

Siboli by counsel to which the accused replied that he gave those instructions.

[520] The accused was reminded of a question asked during cross-examination to

inform the court whom of the accused persons he had known prior to his arrest and

that he replied that he knew no accused person. The accused was confronted with

an earlier reply that he knew Norman Justus. The accused was further reminded that

the evidence of Siboli that the accused was at the filling station with an order book

signed by accused 93 was never disputed during cross-examination to which the

accused replied that he gave instructions to deny it. The accused testified that he did

not know Nosco Chombo and denied encouraging or inciting Chombo during

December 1998 to go to Botswana. The accused was reminded of what counsel had

put to Chombo namely that the talk of going to Botswana and secession was rife at

that stage. The accused replied that he did not give such instructions to his counsel.

[521] The accused conceded that he never testified about Masokotwani during his

evidence-in-chief. The accused was reminded that counsel had put it to Nosco

Chombo that the accused will testify that he never transported him to Masokotwani

and that he never testified about it. It was submitted by Mr July that the evidence of

the witness in this regard stands uncontradicted. The accused testified that his

command of the English Language is poor. It was suggested to him that should

someone allege that his command in English is good that would be fraudulent. The

accused agreed with this statement. The accused was then confronted with his

application for employment (Exhibit EUZ) in which he himself had stated that his

command of reading, writing and speaking of the English language was good. The

accused during cross – examination testified that there was never a need for him to

phone Muyongo. The accused was confronted with the telephone numbers of

Muyongo found in his possession and written down by the accused person himself in

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a diary of the year 1993. The accused explained that those numbers were recorded

in the event the need arose for him to contact Muyongo in connection with food.

[522] The evidence of the witness Nosco Chombo that the accused had informed

him that Caprivi would be cut from Namibia was never challenged during cross-

examination. The defence of the accused is not only merely a bare denial of all

incriminating evidence against him, but he denied any knowledge of occurrences

which are not in dispute, eg that there was an excodus of people to Botswana. The

evidence of Nosco Chombo was never seriously challenged during cross

examination, save for the statement that the accused would deny transporting the

witness to Masokotwani. In my view there is no reason for this court to reject the

evidence of the witness Nosco Chombo. This witness testified in fairly detail what

was said during their conversation, by whom, described their journey until the point

where they were loaded and testified that the accused was not present when they

crossed the river into Botswana. If this witness ever had a reason to falsely implicate

the accused he could have for example, exaggerated the involvement of the accused

by stating that the accused himself assisted them to cross the river. I am satisfied

that the evidence of this witness is satisfactory in all material respects.

[523] I must state that the evidence of Siboli that the accused was a member of

Kopan ya Tou must be approached with caution in view of the uncontested evidence

by the accused that he was never in the army (obviously referring to the SWATF)

and this evidence cannot be relied upon. The accused on the other hand was a poor

witness who on a number of occasions during cross-examination was unable to

explain contradictions, ascribed anomalies to either typing errors or to interpreters

not translating what he had said; admitted indirectly to dishonest conduct and at

times gave non-sensical answers. An outstanding feature of his evidence-in-chief as

well as replies during cross-examination, as alluded to afore-mentioned, is to have

closed his eyes (figuratively speaking) and his ears to the events which occurred

around him in Caprivi especially during the years 1998 and 1999, because in my

view he not only did not have a reasonable explanation for incriminating evidence,

but it conveniently suited him to do so. His ignorance of the attempted secession is

gainsaid by a statement of a co-conspirator and co-accused to the effect that he

participated in that attempt. His evidence cannot be reasonably possibly true and is

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rejected as false. At the very least, the accused knew about the attempted secession

and failed to inform the authorities about it.

Mashazi Allen Samenja (accused no. 67)[524] Christopher Siboli testified and identified that accused person in court as a

mobiliser of persons with the aim of seceding the Caprivi region. He testified that the

accused donated money for the purpose of acquiring weapons in Angola. During

cross-examination it was put to the witness that the accused will deny that he had

attended any meeting with the witness. The witness replied that the accused may do

so. It was put to the witness that the accused will say that he only knows the

accused facially, to which the witness answered: ‘we used to drink together’.

[525] Profysen Pulano Muluti testified that the accused person encouraged him to

go to Botswana where he would receive money (50 pula). This witness testified that

he eventually together with four persons crossed the Chobe river into Botswana. He

testified that the accused is his brother. He identified Allen Sameja as accused no 67

in court. They went on foot to Botswana. This witness was not cross-examined.

[526] Linus Kambunga Mumbonda testified that on 1 January 1999 he went with

one Richwell Mukungu from his village to Ngwezi on the way to Botswana with the

aim to attend school. At the market in Ngwezi they were told to board a vehicle and

drove to Lyibu-Lyibu and eventually proceeded to Dukwe. He testified that he was

transported by one Allen Sameja but was unable to identify Allen Sameja in court.

[527] Elvis Kanungu Elijah testified that during December 1998 two men, namely

Robert Chelezo and Allen Sameja came to his village and told him to go to Dukwe in

order to find employment and education and thereafter to return to Namibia in order

to separate the Caprivi from Namibia. This witness testified that he eventually

travelled and reached the Chober river. Here Robert Chelezo directed him to cross

the river. Robert Chelezo was in the company of Allen Sameja. This witness was

unable to identify either Allen Sameja or Robert Chelezo in court. The testimonies of

Linus Mumbonda and Elvis Elijah who failed to identify the person Allen Sameja in

court will not be considered in the evaluation of the evidence.

[528] The accused testified that he was arrested on 4 August 1999 and was

employed at a UN Agency, Food and Agriculture Organisation as regional

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coordinator of a project called Food Security and Nutrition Programme in Caprivi

Region, since 1997. He testified that he is a member of SWAPO and has never been

a member of the DTA or the UDP; that he has never influenced people to flee to

Botswana in pursuance of a conspiracy to secede the Caprivi from Namibia by

military means; that he was never an organiser of people to go to Botswana and

never transported people to Botswana. In respect of the evidence of Siboli that he

was a mobiliser in his area, the accused denied it and explained that he is a member

of SWAPO since 1992, that he was a very active member, was not only an ordinary

member but had a portfolio in SWAPO party. The accused further pointed out that

according to Siboli his (ie Siboli’s) area for mobilization was the Lisikili Livula village

and that his village is about 140 km away. The accused testified that during 1992 he

was in Grade 12 at school ‘in town’ and was not in his village. The accused stated

that he started Grade 12 in 1991 and he had to repeat it in the year 1993 when he

received his senior certificate. This certificate was received on Exhibit EVA.

[529] The accused denied that he influenced Profysen Muluti to go to Botswana and

explained with reference to the record116and the evidence-in-chief of the witness

when asked what made him to go to Botswana, Profysen testified that one

‘gentlemen’ Progress Lifasi had asked the accused at the courtyard of Lifasi:’you

what is the reason that where others are going you are not going you are not going

there?’. According to him Lifasi then said the he would make arrangements for

transport and that where he was going would be things like jobs, schools and that he

would be paid money. The accused testified that it was Progress Lifasi who had

influenced the witness to go to Botswana and not him. The accused testified that he

did not know Linus Mubonda. The accused denied that he had knowledge of the

issue of secession and had no knowledge about impeding attacks on Katima Mulilo.

He testified that on 2 August 1999 he was with his family at home in Katima Mulilo,

and that he rented a house from a Mr Mucheka.

[530] The accused testified that he knew Siboli only facially and had seen Siboli for

the first time in March 1999. The accused testified that when he is not in town he

stayed at his village Malihera in Batubaja area, 110 km south of Katima Mulilo.

During cross-examination by Mr Neves the accused confirmed that the Mr Mucheka

he referred to was also a SWAPO supporter.

116 P 20773.

181

[531] The accused was cross-examined by Mr July. The accused testified that he

knows Mucheka is a member of SWAPO. The accused was asked whether he knew

any of the other accused persons before court before his arrest117 and the accused

replied in the affirmative mentioning Gibson Luka, Mucheka, Gabriel Mwilima, Patrick

Iita Likando; that he knew Muyongo and Geoffrey Mwilima as parliamentarians,

Muyongo as the president of the opposition party; that he heard about the UDP

somewhere during 1987; that he used to hear that the President of the UDP was

Muyongo; that his portfolio in 1989 in SWAPO was Chairperson of SWAPO Youth

League from the Sangwali to Linyanti area – a district chairperson; that from 1987 to

1994 he was an active member but from 1994 until his arrest he was a passive

member of SWAPO since in 1994 he was employed by the UN Agency and one of

the policies of this agency was that one was not allowed to participate in active

politics; he denied that he promised to give the witness Muluti fifty pula.

[532] It appears from the record that Muluti had a conversation with Progress Lifari,

that jobs and school would be available in Botswana and that money may be paid to

him. When Muluti was asked who had informed him about money118he replied that

Progress told him and Allen Sameja also told him and ‘he hinted that when you go

there you will get something like 50 pula’. Muluti testified that the accused told him

only on one occasion about the 50 pula. It would therefore be incorrect to suggest

that the accused had promised to pay Muluti 50 pula.

[533] The accused was confronted with his testimony in evidence-in-chief where he

testified that he had no knowledge about secession. The accused replied that he

understood Mr McNally to refer to personal knowledge, that he had no personal

knowledge about the issue of secession and only heard about it over the radio and

read about it in the newspaper. The accused testified that he had been aware that a

group of 92 had crossed into Botswana. The accused denied knowing a person

going by the name Robert Chelezo. The accused testified that he became aware of

an exodus of people through the NBC. He testified that (with reference to the year

1992) he went to school during January and returned during December because of

the distance and that he had no money for transport and that during the May/June

holiday he attended a NANSO Regional Conference where he was elected as 117 P 37534 lines 31-32.118 P 20774, Line 9.

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Deputy Regional Chairperson of NANSO and that he never returned home during

the course of that year.

[534] The accused was referred to cross-examination during a bail application

brought during September 1999 when he was asked whether he knew Ben Munzie

and was referred to a question to the same effect by Mr July namely whether he

could ‘recall any co-accused before court or who were co-accused before court’. The

accused replied that the reference to accused persons were accused persons

presently before court. The accused is supported by the record on this point. The

accused testified that he had informed the court during the bail proceedings that he

knew Ben Munzie, and then narrated the circumstances under which he met Munzie,

adding that Munzie comes from a place called Sabero from the same area the

accused hails from.

[535] The accused was referred to the testimony of Siboli to the effect that the

accused was a mobiliser in the year 1992, and that the accused allegedly donated

money to acquire weapons in Angola. It was put to the accused that he only knew

Siboli facially as testified by the accused; that Siboli had no reason to falsely

implicate him in this case. The accused replied that Siboli was a hired witness,

because he was shown photographs, that Siboli never mentioned his name in a

statement by Siboli deposed to on 23 March 1999, that if Siboli had known about his

involvement in the attempt to secede the Caprivi Region he would at that stage have

said so, which shows that his testimony was an afterthought. In reply to further

questioning the accused referred to Exhibit BAR, stating that Siboli was given

photographs and his name and that is why Siboli was able to point him out.

[536] The accused was asked whether there was any evidence that Siboli was

shown a photograph of the accused and that was why he was able to identify the

accused, to which the accused replied that that evidence came from Mr July himself

since Siboli was part of a group of witnesses referred to by Mr July. The evidence by

Mr July is a reference to the testimony of Mr July during an application for a special

entry in terms of s 317 of Act 51 of 1977 brought by defence counsel Mr Kauta. The

accused agreed that the witness Profysen Muluti was not cross-examined by

counsel and that it was counsel’s decision not to cross-examine. The accused

agreed that Profysen Muluti testified about a meeting addressed by Muyongo during

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1998 at Malengalenga which meeting was addressed by Muyongo and where

Muyongo made certain promises; that after this meeting Muluti returned to his village

and had only later heard about a group of 92 that had gone to Botswana. The

accused denied that he had informed Muluti about the group of 92 as testified to by

Muluti. The accused was referred to the evidence of Muluti who testified that he

heard about the group of 92 since the accused ‘during Fridays’ used to drive to the

village from Ngweze. The accused denied that he used to drive to the village every

Friday.

[537] I do not think that much turns on the evidence that Muluti heard from the

accused that a group of 92 individuals had gone to Botswana, since, this it appears

from the evidence, was public knowledge, except to attack the credibility of the

accused, especially in view of the fact that the testimony of Muluti was not disputed

during cross-examination. The accused called one witness, namely Delicious Matota

Sameja who testified that he lives in Malihera area and was unemployed. He testified

that the accused is his younger brother and during the years 1991 and 1992 the

accused was attending school in Katima Mulilo and that the accused was a member

of SWAPO. During cross-examination, the witness testified that the accused did not

use to come home during those years (ie 1991/1992) because amongst them no one

was employed; that he only saw the accused during the month of December when

the school closed.

[538] It appears from the replies given to the questions by the prosecution that this

witness is an uneducated person. He had no concept of distance (kilomentres),

could not say how old he was in 1991, could not tell his age when he testified (on 9

April 2013), only knows that 1968 appears on his identity card, did not know how old

the accused was or in which month the accused was born. This witness candidly

informed the prosecutor that he is ‘not learned’. The witness testified that he knows

Profysen Muluti as a younger brother, actually a cousin. The accused also testified

that Muluti is a cousin (not a biological brother).

[539] Mr July submitted that the accused tried to convince this court why the

testimonies of Siboli and Muluti should be rejected without any plausible reason why

this court should do so. The reason given by the accused, it was submitted, was that

Siboli was hired witness and that photographs had allegedly been shown to Siboli is

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the furthest from the truth. It was further submitted that the explanation by the

accused (for the rejection of the evidence of Siboli and Muluti) is ‘speculative and

inconceivable’. This court needs to look at the uncontested evidence of Muluti in

order to determine whether he had incriminated the accused before it can consider

whether the testimony should be rejected or not.

[540] It is apparent from the record that when the accused ‘hinted’ about money to

be obtained in Botswana, Muluti was alone (ie not in the company of a third person).

No one else heard what was said and no one else came to testify about this

conversation. The witness Muluti is therefore a single witness. I am of the view that

the fact that the accused had ‘hinted’ about money in Botswana can by no stretch of

the imagination be found to be proof beyond reasonable doubt that the accused had

persuaded Muluti to travel to Botswana for the purpose of seceding the Caprivi from

Namibia by violence. Similarly, in spite of the denial by the accused, the fact that he

had informed Muluti about a group of 92 who had crossed the border into Botswana

is no proof that the accused had any prior knowledge of a conspiracy to secede the

Caprivi by violence means. At that stage it was common knowledge that a group of

armed men crossed from Namibia to Botswana, a group which was referred to as

Muyongo’s army.

[541] I do not support the submission that the reasons given by the accused person

why the evidence of Siboli should be rejected, can be characterized as ‘speculative

and inconceivable’. There was evidence during the application in terms of s 317 that

photographs of accused persons with their names had been shown to state

witnesses and although there is no evidence that any photograph and the names of

this accused was shown to Siboli, this court has reason to treat that evidence with

circumspection. Siboli is also a single witness. The evidence of the accused person

was not of such a poor quality, as was suggested. There were no material

contradictions and even where the accused person had denied evidence not

contested during cross-examination gives this court no reason to reject the evidence

as not reasonably possibly true and to reject it as false.

[542] The evidence of the witness who testified on behalf of the accused did not

contradict the evidence of the accused in any manner. I am accordingly of the view

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that the State has failed to prove the commission of all the charges preferred against

the accused person beyond reasonable doubt.

Clients of Mr Neves

Geoffrey Kupuzo Mwilima (accused no. 68)

[543] Oscar Mwisepi testified and identified the accused as a leader of the

movement to secede Caprivi Region and that he ‘offered himself’ for that aim. He

testified that the accused chaired meetings. The witness testified that the accused

was present at a meeting at Liselo at 1997 where the issue of secession was

discussed as well as the formation of an army. The witness testified that he accused

supported the idea of secceding the Caprivi from Namibia. Mwisepi testified that the

accused attended the 3rd meeting during the year 1998 at the DTA office where the

suspension of Muyongo was discussed. In relation to the Liselo meeting the witness

testified that the accused arrived there with Muyongo and the accused gave a short

history how Caprivi and Namibia differ. The witness further testified that the accused

‘entirely committed’ himself by influencing people to go to Botswana and gave

information about the issue of secession.

[544] The evidence-in-chief of Mwisepi mentioned hereinbefore is also referred to.

During cross examination the witness was referred to the first meeting held in

September 1998 in Liselo and asked what the accused had said at that meeting. The

witness replied that the accused had said something but couldn’t remember what

was said. It was submitted by Mr Neves that the witness had testified: 119 ‘ If I am not

mistaken. . . Geoffrey Mwilima. . . said something at the meeting. . . .’ Mwisepi, later

during cross-examination confirmed that when asked what the accused said at the

Liselo meeting, he could not remember. It was put to the witness that the accused

did not attend the meeting at Liselo in 1998, the witness disagreed. The witness was

asked which meeting he attended was the accused the chairman. The witness

replied that the reference to chairman was a mistake, but that all the meetings he (ie

the witness) had attended the accused was present.

[545] Christopher Lifasi Siboli testified that the accused was present during the year

1989 when the CLA was formed. The witness testified that the accused was present

119 P 2000, line 19-20.

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during the year 1991 at a meeting where ex-SWAFT/Kopano ya Tou’ members

attended and where the accused supported the secession of the Caprivi. The

accused was identified by the witness in court. The witness testified that the accused

in 1992 at a DTA meeting agreed that people should go to Angola in order to acquire

weapons and appointed this witness, John Samboma and Thaddeus Ndala to go to

Angola. The witness testified that the accused attended a second meeting during

1992 at which meeting the reply from Angola was reported; that the accused

donated money; that the accused attended a meeting in 1993 at the DTA office in

Katima Mulilo were the issue of secession was discussed; that the accused

addressed a meeting at the DTA office in 1997 where the topic of discussion was the

acquisition of weapons from UNITA in Angola; that the accused attended a meeting

at the old house of Muyongo in 1997 addressed by Muyongo where the issue of

secession was discussed; that the accused attended a meeting in 1997 at the new

house of Muyongo where the topic of discussion was the donation of money for the

acquisition of weapons; that the accused attended a meeting at Liselo village in 1997

where secession was discussed; that the accused attended a meeting at Sibinda

village in 1997 where secession was discussed; that the accused attended a

meeting in 1997 at Sikuvi village where secession was discussed; that in 1997 he

was at the house of Victor Muituti from which a number of persons left for Linyanti to

see the Chief and from there went to Kasani, Botswana to the Governor with a letter

from the chief in which the issue of secession was mentioned.

[546] Mr Neves in his heads of argument referred to contradictions by this witness.

He submitted that this witness testified that the accused was a member of Kopano

ya Tou but failed to identify the accused as having attended a meeting of Kopano ya

Tou. It was pointed out that the witness testified that he was a member of the DTA

organizing committee since 1985 but in his statement of 23 March 1999 reflects that

he only became a member of the organizing committee in 1991. It was pointed out

that in a statement dated 23 March 1999 no mention is made about an organisation

called Kopano ya Tou playing any role in the issue of secession and that this was

conceded by the witness. It was further pointed out that the witness could not recall

attending any meetings in 1990 or in 1996. Reference was further made to the cross-

examination by Mr Kauta where the witness was reminded of his testimony during

cross-examination that during the year 1997 he could not recall any meetings where

secession was discussed. The witness replied that meetings took place but that he

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was unable to point out places where the meetings took place. The witness was

asked whether he could remember with whom he had attended the meetings in 1997

and replied: ‘they are present whom I used to attend the meeting with’.

[547] The witness testified that he made a mistake when he stated in evidence-in-

chief that he did not attend any meetings during 1996. The witness was asked to

confirm that he attended a meeting at Lisikili during 1998 and replied that he

attended a meeting at Lisikili but was unsure when that was; that he could not recall

how many meetings he had attended during 1997; that he could not remember when

the CLA was formed; that he was not present at the meeting when the CLA was

formed. It was put to the witness that the accused denies being a mobiliser to which

the witness replied that he (ie the witness) would also have denied it if he were in the

shoes of the accused. It was put to the witness that the accused did not attend any

of the meetings testified to by the witness where upon the witness replied that he

was not suppose to deny it.

[548] Progress Munsa Mulunga testified that he joined the DTA in 1991 and was

elected in 1998 as chairperson of Kashese branch. He testified that the accused and

John Mabuku addressed a meeting during 1998 at Kashese branch of the DTA

informing the attendants that Muyongo intends to leave parliament and intends to cut

Caprivi from Namibia by using firearms. This witness identified the accused person

in court.

[549] This witness further testified that he found the accused at the Shell Filling

Station in Katima Mulilo with 12 persons. According to this witness the accused

informed him that he was taking these persons to Angola and that one John

Samboma was amongst those persons. This witness testified that in 1998 a meeting

was called at the DTA office in Katima Mulilo by Mishake Muyongo and the accused.

At this meeting Muyongo informed the attendants that he had left parliament to stand

on his own in Caprivi, that he had taken that stance because the people in Caprivi

are suffering too much. The accused complimented what Muyongo had said and

according to this witness, the accused said that it was because of that reason that

they ‘should be cut away from Namibia’. The witness testified that Muyongo stated

that the cutting would be done by fighting using fire-arms and Muyongo mentioned

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John Samboma, Thaddeus Ndala and Francis Mushandikwe amongst others who

were to use those firearms.

[550] During cross-examination the witness confirmed that the accused said that

Caprivi had to be seceded by ‘the barrel of the gun’. Mr Neves in his heads of

argument submitted that he heard that people were going to Angola but in his

evidence –in-chief the witness incriminated the accused. Mr Neves referred the

witness to a statement deposed to in 2000 where it does not appear that the

accused came with John Mabuku at the Kasheshe meeting. The witness replied that

it was a mistake. Mr Neves further pointed out that in the statement deposed to by

the witness no mention is made of the accused chairing a meeting at the DTA office

it only appeared subsequently in a statement deposed to during the year 2003 and

submitted that the police was instrumental in adding names, events and contents of

such events in order to build a case against the accused. In this regard reference

was made to the evidence of State witness Morgan Mbonabi who to a question: ‘. . .

did the police ask you if Geoffrey Mwilima spoke about getting guns to free Caprivi,

to cut Caprivi at the meeting?’ replied: ‘Its correct’.

[551] The witness was confronted with a document purporting to be a statement in

which he allegedly complained about beatings and torture by the police. The witness

denied the contents of such a document or that he was the author thereof. It was put

to the witness that the accused will deny that he attended any meeting testified by

the witness. The witness confirmed that the accused attended those meetings. It was

put to the witness that the accused will deny ever addressing those meetings. The

witness insisted that the accused indeed addressed those meetings. During cross-

examination, the witness testified about three meetings which according to him the

accused had attended. Mr Neves referred to the cross-examination by Mr Nyoni and

pointed out that the witness had testified that at the filling station, the witness

testified that the accused had said he was taking those 12 people to Angola, that

during cross examination the witness stated that the accused did not inform him of

the purpose of the journey and later testified that he had stated during his evidence

in chief that the accused told him that he was taking those people to Angola for

military training. The record reflects that the witness did not testify in his evidence-in-

chief that the purpose of the journey to Angola was for military training. Bernard

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Bareka Kanzeka testified and the content of his evidence was already referred to

hereinbefore.

[552] Shailock Sitali Sinfwa testified that the accused called, attended and spoke at

meetings during 1998 at the Regional Office of the DTA where the attendants were

informed that the UDP separated from the DTA and that the Caprivi will be seceded

from Namibia. The witness identified accused no 75 as Geoffrey Mwilima.

[553] Charles Kachiolwa Matome testified that during the year 1998 Muyongo and

Geoffrey Mwilima addressed attendants at a meeting held at his village. Muyongo

said that he came from parliament in order to take his people out of Captivity of

SWAPO and that is why he had left in order to form his own army. Geoffrey Mwilima

spoke and said that he was in agreement with Muyongo. Geoffrey Mwilima chose

two men Immanuel Makandano and Richard Shihelwa Kawana to pursuade the

youth to join. This witness was unable to identify Geoffrey Mwilima in court. The

witness stated that he was unable to do so due to poor eyesight. This witness was

75 years old when he testified on 30 January 2006.

[554] Daniel Sitali testified that during 1998 he attended a meeting at the DTA office

addresses by Muyongo who informed those in attendance that he wanted to

resuscitate the UDP in order to stand on his own and that he was not going to be

part of the DTA. At this occasion Geoffrey Mwilima asked the attendants if they had

heard what was said and whether they agree. All the attendants agreed including the

witness himself. This witness was unable to identify Geoffrey Mwilima in court due

to poor eye sight. The witness was 62 years old when he testified on 31 January

2006. This court placed on record120 that accused 68 ‘had his nose and his mouth

covered with his hand when the previous witness was given the opportunity to

identify persons, and he is doing the same now.’ The previous witness was Charles

Matome. Although both these witnesses were unable to identify Geoffrey Mwilima

exclusively due to poor eye sight, the accused deliberately tried to disguise himself in

order to make it difficult for these witnesses to identify him.

[555] Gobfrey Sibeso testified that on 1 August 1999 at the main Khuta at Linyata

there was a discussion about secession. At this occasion, one Geoffrey Mwilima

120 P 6637.

190

stated: ‘ . . . we who fall under UDP, we cannot go for that issue. We have just to cut

Caprivi from the rest of Namibia’. This witness failed to identify Geoffrey Mwilima in

court.

[556] Brian Lisepo Lubeile was an Induna and testified that on the day of the

inauguration of the new chief, Geoffrey Mwilima was amongst a group of people who

opposed the inauguration. Geoffrey Mwilima was identified by this witness in court as

accused no 68. During cross examination, the witness testified that the accused was

not suppose to be ‘anti’ because he is part of the Royal family. When asked what the

accused did wrong the witness replied because he was waiting for a person who had

gone to Botswana. It was put to the witness that two police officers Chief Inspector

Shishanda and Ben Munzie handed two letters to Geoffrey Mwilima who after

reading those letters left. The witness replied that he never saw that.

[557] Vessimus Haipa testified that the house of the accused was searched on 27

October 1999 in the presence of the wife of the accused. The documents found were

booked in by Sgt. Simasiku as per Pol 7/330/99 (Exhibit EFH). There were 59

documents entered in the Pol 7 register, inter alia, a document ‘Aims and Objectives

of CLA’; UDP letterheads, one with the announcement of a UDP meeting, UDP press

releases dated 3 March 1999 and 7 April 1999 respectively, a copy of a document

titled: ‘The Mafwe tribe rejects George Simasiku as Mafwe’; and a piece of paper

with Muyongo’s telephone number in Denmark.

[558] Geoffrey Kupuzo Mwilima testified that he knows of three persons in the

Caprivi Region with the names of Geoffrey Kupuzo Mwilima, that he was born at

Kanono Village in the Caprivi Region; that he joined the DTA in 1978; that during

1985 after Muyongo had returned from exile the UDP was formed with the intention

to affiliate to the DTA; that prior to his arrest there was no witness statement

implicating him; that the first witness statement was obtained during November 1999;

that from one of the statements obtained from Inspector Goraseb he indicated that

he received instructions from Windhoek to arrest executive members of the UDP and

all prominent members of the Mafwe tribe and that he (ie the accused) interpreted

that as ‘political victimization and hatred’; that at the time of his arrest he was not an

executive member of the UDP; that he was arrested on 4 August 1999 at home and

taken to the charge office where he was blind folded by Sgt. Evans Simasiku; the

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blindfold was later removed and he was questioned by police officers Patrick

Liswani, Kashawa and Haipa about the whereabouts of Muyongo; by that time it was

a well-known fact that Muyongo was in Denmark; he was questioned why he did not

go to Botswana; why he was not accepting George Simasiku on his chief to which he

replied that it was a traditional matter; they started to assault him with open hands,

with fists, by kicking him and by using sjamboks for about 15 minutes; Patrick

Liswani kicked him on his right cheek and Haipa kicked him on his left cheek, he lost

consciousness; when he woke up he was wet; he was taken to the office of the

Station Commander where the assaults and torture continued; the interrogations

continued; warrant officer Mukena told the other police officers to stop; on 7 August

he was taken to Katima Mulilo General Hospital; the Minister of Defence, Mr

Nghitima visited him in hospital and arranged for transport and he was flown to

Windhoek on 16 August 1999.

[559] In respect of the witnessess who testified against him and who had identified

him he stated that because he was a public figure it was easy for any one to identify

him. The accused testified that he did not know Mwisepi, saw him for the first time in

Grootfontein; that the witness had been couched; that what Mwisepi testified about

the Liselo meeting in 1998 was a reproduction of what he was told by the police; that

he was in the central committee which suspended Muyongo in September and

afterwards never shared a political platform with Muyongo; that parliament resumed

from 15 September to 18 November and it was impossible to be at two places at one

time; that he does not support secession; that he has no knowledge of a meeting

held at Ngwezi Community Hall; that on 4th September 1998 during a demonstration

the DTA members in Caprivi Region tried to express their unhappiness with the

manner in which Muyongo was suspended without giving him a fair hearing. The

accused explained that the phrase: ‘Muyongo is Caprivi and Caprivi is Muyongo’ was

a simple political quotation which means that Muyongo is enjoying support in the

Caprivi and it was a caution to the DTA Central Committee that the expulsion of

Muyongo may cost them loss of support.

[560] The accused referred to the record121 where Mwisepi testified that the accused

was not involved in the issue of seceding the Caprivi Region. The accused also

referred to the record122 where Mwisepi when asked who accompanied Muyongo to 121 P 789.122 P 612.

192

the Liselo meeting stated that it was Francis Sizimbo. The accused testified that

Chrisopher Siboli identified him in court because he was a public figure and because

of the yellow and green album. The accused testified in relation to the testimony of

Siboli that the CLA was formed in 1989 that it was a hectic year, there was no

SWAPO Government, UNTAG was here, there were elections, that he was not

aware of such an organisation, that the Republic of Namibia only came into

existence on 21 March 1990. The accused denied any knowledge about a meeting

where the acquisition of firearms was discussed and testified that in respect of the

report at a subsequent meeting, Siboli during cross-examination by Mr Kauta

testified that he never went to Angola; that Siboli was a ‘non-entity’ in the DTA; that

he never donated any money for the acquisition of firearms; that the only meeting he

addressed in 1998 at Lisikili was a meeting where he was in the company of DTA

Vice-President Phillemon Moongo and Mike Venaani, who was the Secretary

General; that warrant officer Popyeninawa never testified that he had addressed a

meeting where the topic was to secede the Caprivi Region and that Popyeinawa had

described him as an information gatherer; that he never attended a meeting at the

house of Leonard Ntelamo in 1997; that Leonard Ntelamo testified and denied

knowledge of such a meeting; the wife of Ntelamo also denied knowledge of such a

meeting; that he never invited Bernard Mucheka to a political meeting at his house;

that Progress Mulonga was one of his students; that Mulonga in his witness

statement stated that John Mabuku addresses a meeting at Kasheshe branch in

1998 and another meeting at DTA office addressed by Chris Mushanana; that the

witness substituted his name for the names of John Mabuku and Chris Mushanana

because John Mabuku and Chris Mushanana are not in court; that the witness

Mulongo conceded that John Mabuku addressed a DTA meeting at Kasheshe but

this was during 2000; that Mulonga had a hearing problem at school, had to sit in

front of the class; that he never met Mulongo at Zambezi Shell Service Station.

[561] The accused testified that according to the evidence of Insp. Goraseb during

cross-examination, his house was searched after his arrest and the police did not

find any documents; that no search warrant was presented in court for the search of

his house on 27 October 1999; that he was never informed of the intended search of

his house by the police; that he was not taken to his house before the search; that he

did not attended a meeting at the house of Muyongo during 1996 as testified by

Progress Lifasi Mibonda; that he knows Charles Mulate Lizazi as one of his students

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at Simataa Secondary School in 1984; that he did not attend a meeting in 1997

addressed by Muyongo; that the UDP broke away from the DTA on 12 January

1999; that he did not speak to Brian Lubeile on 18 April 1999; that he resigned from

the DTA because of a situation of insecurity in the Caprivi Region after the death of

Victor Falali.

[562] During cross-examination by Mr Kauta, the accused testified that he knows

Leonard Ntelamo as one of his students in 1977; that he has never been to the

house of Leonard Ntelamo; that in 1998 there was no political party registered under

the name of UDP. During cross-examination by Mr Muluti the accused denied

sending John Samboma to Angola to acquire weapons from UNITA as testified by

Siboli. The accused was cross examined by My January on behalf of the State. The

accused testified that he was a member of the UDP from its foundation until it

affiliated to the DTA in 1987; that from 1987 the UDP was non-existent; that he

resigned from the DTA because of the state of insecurity in the Caprivi and because

his life as a former member of the DTA was in danger. The accused conceded that

the reason that his life was in danger was a new fact introduced by him.

[563] The accused was referred to a bail application in which Mr Lourens Campher

was the prosecutor. During the bail application he was asked if he was a member of

the UDP and he confirmed it. The witness replied that his answer must be seen in

context since he did not state when he was so a member. It was put to him that the

bail application at that stage referred to the present tense. The accused disagreed.

The accused was referred to the bail application in 2002 in which Mr Campher

prosecuted when he was asked how many meetings he had attended in the Caprivi

Region to which question he replied that he attended several meetings. The accused

replied that he does not know.

[564] The accused was asked whether he could recall that he gave that reply (ie

attending several meetings in the Caprivi Region) to which the accused replied: ‘ yes

from the time I entered politics up to the time of my arrest’. The accused was asked if

he could recall what he told the court why he attended several meetings. The

accused replied: ‘the question is too general’. The accused agreed that in that bail

application he stated that he attended several meetings in the Caprivi Region in

order to inform them (members of the public) about laws which had been passed in

194

Parliament. The accused agreed that it would be difficult to identify Mwisepi at a

public meeting. The accused when he was asked who were the executive members

in UDP stated: ‘ Albis Maswahu, Joel Mutonga, Patrick Limbo (Secretary General),

Gabriel Siseho, Gideon Matengu, himself, Muyongo (President), Cooks Liyoba (Vice-

President), Dunbar Mushwena (Treasurer). The accused testified that he knew

Stephen Mamili as a cousin, who came to the accused whilst the accused was in

Windhoek and informed the accused that he (ie Stephen Mamili) had been elected

as Secretary-General in 1994. The accused testified that no office bearers existed

during 1996, 1997 and 1998 that himself was not an office bearer during these

years; that the reason why there were no office bearers is because some resigned

and some died; that Cooks Mujoba resigned around 1992; that Stephen Mamili

informed the accused in 1998 that a certain Alfred Tawana was elected as Vice-

President of the UDP; that in 1999 there was no office bearers of the UDP.

[565] It was submitted by Mr July that the accused testified that during 1996, 1997

and 1998 there were no office bearers in the UDP, but in the bail application where

Mr Campher was the prosecutor there was at least one executive member namely,

Mr Cooks Mujoba as Vice-President. The accused testified that he agreed with the

constitution of the UDP at the time he was a member of the party and strove towards

the objectives of the UDP as contained in the Constitution. The accused testified that

one of the objectives of the UDP was that the Caprivi should be independent,

through peaceful means and negotiations with the Government of the Republic of

Namibia. The accused testified that when Muyongo came back from exile he was in

favour of the secession of the Caprivi Region and that Mr Dirk Mudge, Mr Matjila and

himself flew to Katima Mulilo where Muyongo was discouraged and Muyongo then

agreed to join the internal democratic process and that is why the UDP affiliated itself

to the DTA. The accused testified that he head for the first time about the secession

of the Caprivi after the attacks on 2 August 1999, on the radio.

[566] The accused was referred to Exh C 123 where the prosecutor Mr Kozonguizi

referred him to some documents bearing the logo of the UDP were found in his

house after a search by the police to which he replied: ‘ Yes, I know the documents

which were found in my house in a khaki envelope’. The accused replied that he was

not asked about UDP documents and that his answer was not in relation to the UDP

123 P 28.

195

documents. The accused was provided with a document and asked whether he had

previously seen a copy of such document to which the accused replied that he said it

during a bail application in 2002, but that he saw the original for the first time that

day. The accused denied that Mr Campher had said that the original documents

would be produced at the trial. This document has a title: ‘The Central Committee of

the United Democratic Party (UDP’ of Caprivi Zipfel’ and that amongst its resolutions

was the creation of the Caprivi Liberation Army (CLA). The accused replied that this

document is useless since no date appears on it.

[567] The accused was provided with a document which he identified as his original

letter of resignation from the DTA and also identified his signature.124 This document

was received as Exhibit EVP. The accused was referred to Hansard where it is

reflected that he was asked during a debate in Parliament if he as a member of UDP

had been consulted by Muyongo when Muyongo decided to secede Caprivi from the

rest of the nation. The accused replied that it was a correct reflection of what was

asked. It was submitted by Mr July that the testimony of the accused was that he

resigned from Parliament in February 1999 because of the security situation in

Caprivi at the time but in his bail application in 2002 (Exh. J4), he stated that his

resignation was because the management committee of the UDP in the Caprivi

resolved on 12 January to withdraw the United Democratic Party from the DTA. The

accused further testified that he himself decided to resign and that no organisation

decided that he needed to resign from Parliament. What is apparent is that, in

addition to the fact that there is a contradiction in respect of the reasons provided

why the accused had resigned from Parliament, is the evidence by the accused

himself that the UDP as a party was functioning and made a resolution that the UDP

should withdraw from the DTA. The UDP was in existence and not a non-existing

party as testified by the accused.

[568] The accused was confronted with the contradictory explanations as the

reason for his resignation and provided a meaningless reply. The accused was

asked whether he was aware of the fact that during December 1998 to January 1999

UDP was operational in Botswana. The accused replied on the negative. The

accused conceded that the President of the UDP, Muyongo, and the Secretary-

General of the UDP, Stephen Mamili were in Botswana at that stage. The accused

124 P 38637.

196

was referred to Exhibit ETC where the following appears in respect of 1 January

1999:

‘Meeting for 1999

UDP Day

Agenda: Report on Xmas reception, Review of year 1998 activities of the Party,

withdrawal of the UDP from the DTA, The way ahead of the Party, Party Portfolio,

Any other reasons.

The President welcome everybody with open heart. He said today we find ourselves

in Botswana for the simple reason we want to liberate Caprivi.

Gosping is bad one another. Division amongst us will take us nowhere

Members attended:

President Mr Muyongo

Chief Mamili

S.G. Steve Mamili

Mabuku John

Sizimbo Francis

Walubita Conrade

Samboma John

Lyonga John

Puleho Cletius

Kasimanzi Vincent

Mushwena Moses

Ndala Thaddeus

Mushandikwe Francis

Kachiolwe Geo

Mutorwa Chrispin’

[569] Exhibit ETC1 continues as follows:

‘Liberation of the Caprivi needs commitment which it total. The struggle can be long

and can be short. The people here in Kachisono are the leaders who will be accountable for

everything that will take place hope of the future of our case to liberate Caprivi. The

President emphasised that gossiping is hurtful and that he does not like it. He said that we

should work as brothers, as leaders. We should set example and lead by example. The

issue of tribal lines should not be tolerated amongst us. The question of being in prison is

197

still a living reality as long as we still report at the police every day. The infiltrators among our

people in Dukwe should be isolated when identified. The President also emphasised the fact

that we should have patience enough. A letter was written to the Manager of Kachisono

centre for the welcome and the arrangements for the Christmas reception extend to us.

Review of 1998. The year 1998 will be year to be remembered for a long time to time. Plans

to liberate Caprivi started in 1991 plus 1998 were intended to be a year of implementation.

Also in 1998 a group of soldiers was organised as Caprivi Liberation Army. Many things

happened such as the resignation of the President of the DTA leaving parliament and the

National Council. The struggle will and has advantages and disadvantages to liberation of

Caprivi. Will need a lot of sacrifice. 1998 has been a turning point in the liberation of Caprivi.

The party UDP worked very hard during the year 1998 to organise the people of Caprivi to a

case of liberation of the, or to the cause of Liberation of the Caprivi. A number of people

expressed themselves on the happenings of the year 1998. The delegation and

determination of the Caprivian people to liberate themselves from the Oshiwambo

Government. 2. Withdrawal of UDP from the DTA. It was agreed that we cannot liberate

Caprivi while the UDP is still affiliated in the DTA. The UDP is the vehicle through which we

will achieve independence of the Caprivi the president requested the meeting to endorse the

withdrawal of the UDP from the DTA. A resolution was taken to withdraw the UDP from DTA

with no opposition at all. All members available voted. Unanimously that was with effect from

1st January, 1999. 3. The way ahead. The UDP will not leave a stone unturned in the

process of liberating Caprivi from the Owambos. The President emphasised that it is to look

for ways and means including diplomacy and armed struggle. The president called upon the

people back home to double the efforts in addressing the problems. He also said they should

even go to the embassies in Namibia to sell our course. The president warned our people

should know that we are involved in a liberation struggle and not a picnic. The President

warned that we should check the ways we do our things. He called upon all members

present that they should have respect to one another. He further said we should avoid the

following leaders. Opportunism, gossiping and disunity amongst ourselves. We should be

serious with our case and mean liberate Caprivi at all costs come what may. In our liberation

the key one is the barrel of the gun. As a result our people at home will be on a high risk

being targets of our enemies and we should inform them. People at home should also work

hard, publicise our course, make meeting to inform them what is expected of them in our

struggle help the CLA in all possible way. Everybody should set herself/himself a goal and

what he/she is going to do for the Caprivi and its people. We should all focus on Caprivi to

achieve our mission. We should not be self-centered’.

[570] The accused replied that the minutes totally exonerated him, his name was

not mentioned, and he was not there. The minutes is proof that the UDP was a

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functioning political party even in exile. The accused testified that he was not aware

that the UDP was operational in Botswana. During cross examination a copy of a

press release (Exhibit EVR) was provided to the accused and asked whether his

signature appears on it. The accused replied: ‘It looks like my signature but it is not

my signature’. The letter of resignation appears on a UDP letterhead. The accused

stated that the signatures on Exh. EVR and Exh EVP are not the same. The

Constitution of the DTA on which the signature of the accused appears was handed

in and marked Exhibit EVU. The accused acknowledged that his signature appears

on this document. Two letters addressed to the Windhoek Prison and signed by

Mwilima (Exhibit EVW and EVX) were also handed into court. The accused admitted

that his signature appears on Exh. EVP and that it appears to be his signature on

Exh. EVR, and admitted that his signature appears on Exh. EVU (DTA Constitution).

In respect of the signature on Exh. EVR (the press release) it appears to me to be

similar to the signatures on Exhibits EVP and EVU, but I am not prepared and not in

a position to state that it was definitely the accused person who had signed Exhibit

EVR.

[571] The accused was referred to a bail application (Exh. J5)125 in which he was

asked whether he was still an office bearer of the UDP ‘at that stage’. This stage

referred to the stage when the accused tried to revitalize the UDP. The accused

explained that the UDP Congress was supposed to have taken place in 2000, after

six years according to the constitution, but because no Congress took place

‘automatically those other members who were previously serving in the Central

committee or in the executive, could still continue up to the time when the Congress

was going to be held’. The accused confirmed (twice) that he was considered an

office bearer of the United Democratic Party. The accused was asked 126 to explain

that if he were not a member of the UDP how it was possible to be an office bearer

to which the accused replied as follows:

‘. . . I was very clear from the beginning that I was a member of the United

Democratic Party, a card carrying member of the United Democratic Party. I think I was very

clear on that. Up till today? . . . My Lord, My Lord yes, I haven’t tendered any resignation’.

This bail application was heard on 27 September 2002.

125 P 574 of J5.126 P 576 – 577 of J5.

199

[572] The prosecutor (Mr Campher) then pointed out to the accused that in a

previous bail application he had denied being a member of the UDP. The accused

replied that the answer was with reference to the UDP in Botswana. The accused

was then referred to the record of the previous bail application where the following

was posed:

‘. . . you are making reference to “my party”. Which party is that?. . . United

Democratic Party, being a member of the DTA. Mr Mwilima are you still a member of this

party? . . . No.

Why not? What happened?’.

[573] The reply given by the accused was inconsequential. The accused was

referred to the bail application during 2002 and was asked whether he was still a

member of the UDP. The accused denied that he was a member. The accused was

confronted with his evidence in the bail application that he testified that he was a

card carrying member of the UDP whilst in court he testified that he never had a

UDP card. The accused maintained that he never had a UDP card. The accused

denied that the withdrawal of the UDP from the DTA did not influence his decision to

withdraw from parliament.

[574] The accused was referred to his testimony that he conducted only one

meeting during the year 1998 and that it appears that he conducted several

meetings to which the accused replied that he said that he had conducted several

meetings from 1985 when he joined parliament until the time of his arrest.127 The

accused further testified that he testified in the bail application of 2002 that he

conducted several meetings from 1985 until February 1999 when he resigned.128

This is a contradiction, the first period referred to is a longer period that the second

period- the accused was arrested during August 1999.

[575] Baxtor Kulobone testified on behalf of the accused. According to his testimony

he was employed from 2000 to 2007 as human rights monitor in Katima Mulilo. A

person by the name of Progress Mulonga visited their office and he spoke to the

witness and Mulonga was requested to put his complaint in writing. Mulonga

submitted a piece of paper the next day written in the Silozi language to the effect

that this person was abused by the police ie the investigators in the case of High

127 P 38 712.128 P 38726.

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Treason. During cross examination this witness stated that he knew Progress

Mulonga but conceded that he could not testify whether Progress Mulonga who

testified in court is the same person who visited his office. The witness was referred

to the fact that Mulonga denied the contents of the document presented in court. The

witness could not controvert that evidence. The witness testified that he never

investigated the allegations filed by this person.

[576] The accused during cross-examination handed in copies of identity

documents (Exhibit EVT1, EVT2 and EVT3) in an attempt to show that there are a

number of Geoffrey Mwilima’s in Namibia. One, Exh. EVT2 is a copy of the identity

document of the accused. The other two persons were not parliamentarians. The

evidence of the witness called by the accused does not assist him in his defence at

all, and is a belated attempt to have the evidence of Mulunga excluded on the basis

that he had been tortured by the police. The accused, like all the other accused

persons before court, never gave a plea explanation. His defence is a denial of

incriminating evidence against him. The explanation by the accused why he was

identified by witnesses, was because he was a public figure. This was not put to the

State witness.

[577] The accused was a witness who contradicted himself on a number of

occasion in particular his connection with the UDP which in my view clearly pointed

to the fact that the accused was an untruthful witness. The UDP, from the evidence

adduced, played a pivotal role in the attempt to secede the Caprivi from Namibia.

The Central Committee of the UDP resolved to create the CLA, the fighting wing of

the party (Exhibit EVS) in which its aims and objectives gravitate towards the

secession of the Caprivi Region from the rest of Namibia by an armed struggle, a

‘liberation struggle’ as reflected in that document. The accused from his own

testimony in a bail application was an office bearer of the UDP (though this was

subsequently denied). There was no explanation for this contradiction. The accused

attempted to show that he was not involved in the activities of the UDP and feigned

ignorance in respect of the issue of secession. However, the accused testified in a

bail application that he attended several meetings (though he denied that he

attended those meetings during the year 1998, save one meeting). The issue of

secession was on the lips of everybody in the Caprivi except those of the accused.

201

[578] Amongst the documents seized during a search of the house of the accused

were documents reflecting the aims and objectives of the CLA, and letterheads of

the UDP. Even though this search was done in the absence of the accused, his wife

gave permission for the search by the police officer and was present during the

search. The wife is a person who was entitled to give such permission in the

absence of the accused. It was never denied that the documents entered in Pol

7/330/1999 were not so seized by the police officers. The wife of the accused was

also never called to dispute that she gave permission for the search. In terms of the

provisions of s 22 of Act 51 of 1977 one of the instances where a premise may be

searched without a search warrant is where permission was given for such a search

and I have indicated that the wife of the accused could have given permission to

search the premises. This court was referred to the testimony129 of Chief Inspector

Goraseb on the day the accused was arrested by Chief Inspector Goraseb at the

house of the accused, and where the Chief inspector Goraseb was asked, during

cross examination, whether he had any knowledge of anything which was found in

the house of the accused person, to which the witness replied that he did not have

any knowledge of anything which was found in the house of the accused. It was

never the testimony of this witness that nothing was found at the house of the

accused as testified by the accused, and the suggestion that anything found

subsequently must have been ‘planted’130, is not justifiable.

[579] The accused was not only an untruthful witness but he was also evasive and

tried to usurp the function of this court by comparing and evaluating evidence of

other witnesses. The only reasonable inference to be drawn from the documents

discovered in the house of the accused, the testimonies of the State witnesses (even

though not above criticism), and the untruthfulness of the accused, is that he was

actively promoting the secession of the Caprivi Region from the rest of the Republic

of Namibia as testified by the State witnesses. I have alluded to the fact that the

evidence of the State witnesses is not above criticism. So far example the testimony

of Mwisepi that he could not during cross-examination remember what the accused

had allegedly said at the Liselo meeting whilst he had during his testimony in chief

explained what was allegedly said. Also in respect of the testimony of Siboli who

testified that the accused was a member of Kopano Ya Tou but failed to identify the

accused as a member of Kopano Ya Tou. Similarly, the testimony of Mulungo where 129 Given during a trial-within-a-trial.130 P 30917.

202

he testified that the accused had told him at Shell Filling Station that the accused

had informed him that the accused was taking a number of individuals to Angola.

This witness conceded at one stage that it was a conclusion drawn by himself but

later testified that the accused had informed him that the purpose of the journey was

for military training in Angola. Those parts of the testimonies must be approached

with caution. The evidence of the accused does not exclude the fact that he had

attended public meetings in the Caprivi Region. The accused is a person who

admitted that he wanted to revive the UDP. This is the same party who established

the CLA, which in turn was responsible for the attacks on Katima Mulilo. Although

the accused testified that his aim was in order to participate in a democratic process

on order to re-enter parliament, I am of the view that this explanation is self-serving.

[580] The evidence viewed as a whole in my view establishes the required hostile

intent and overt acts beyond reasonable doubt. The inference is further inescapable

that the accused had prior knowledge of a conspiracy to secede the Caprivi from the

rest of Namibia and that he failed, especially as a former parliamentarian, to inform

the authorities about it.

Adour Mutalife Chika (accused no. 2)

[581] Oscar Mwisepi identified the accused as someone whom he had met in

Botswana. George Alufeya Sizuka testified that he had been to Botswana during the

year November 1998. During July 1999, he returned to his village Gungwe. Whilst at

his village, one Rodwell Squeeze Sihela arrived there in the company of Adour

Mutalife. They asked them (ie the witness and his brother John Libuku) to

accompany them to Ngweze in order to look for ‘piece work’. The witness refused.

Subsequently, on a second occasion, they said: ‘Let us go and join our friends so

that we can cut the Caprivi Region’. On this occasion he was also with his younger

brother John Libuku. The witness testified that he refused. The witness testified

about a gunbattle on 2 August 1999. That day, he was at his village about one

kilometre from Katima Mulilo, he could hear it. The police arrived about 06h00 –

07h00 and arrested Rodwell Squeeze at his parents’ residence and also arrested

Adour Mutalife. They were found in the courtyard. Prior to their arrest, he saw them

but did not speak to them. They looked dirty and it appeared that they were

frightened. Their clothes were soiled with dirt. They had something around their

necks, some fibre. The witness testified that he knew Robert Sihela as his cousin.

203

Adour Mutalife is not related to him. This witness identified Adour Mutalife as

accused no.2 in court and Rodwell Sihela as accused no.30. Adour Mutalife was

easily identifiable on 17 October 2007 by this witness when he gave his evidence –

in-chief. On 18 October 2007 counsel requested a re-identification. The witness

failed to identify Adour Mutalife.

[582] The record reflects that the second time the head of the accused was bald

and that he wore spectacles, whereas the previous day hid head was covered with

hair and he did not wear any spectacles. During the judgment of this Court in the

application in terms of s 174 of Act 51 of 1977, I found that the witness had correctly

identified the accused person since there was no suggestion at that stage when

Adour Mutalife was pointed out, that it was not accused no.2 before this Court. I shall

for the purpose of this judgment accept the same.

[583] During cross-examination, it was put to the witness that the accused was not

arrested on the day as testified to by the witness. The witness replied that the

accused ‘was arrested on that very day’. It was put to the witness that the accused

never spoke to him. The witness confirmed that the accused spoke to him.

[584] John Libuku testified that he resides at the village Nyanda Nyanda in the

Gunkwe area, about 15 km away from Katima Mulilo. He testified that he was in

Botswana since he had been told by one Chrispin Mandoile that in Botswana he

would get military training. He testified that he boarded a vehicle at Engen, Shell

Filling station. Rodwell Sihela, his uncle, was amongst those who boarded the

vehicle. They departed for Masokotwane and thereafter left on foot for Botswana.

After his return during July 1999, Chika Adour Mutalife and Rodwell arrived there

and informed them to go to town in order to prepare militarily for a fight in order to

get Caprivi (their nation). He testified that George Sizuka was with him at that stage.

They were requested twice and were told that the Government would be fought

against. After this discussion, Rodwell and Adour Mutalife returned to town. The

witness testified that the two requests were made on two different days.

[585] On the 2nd of August 1999, he saw the two young men in the village and they

appeared to be soiled with dirt. He testified that he saw a ‘black thing’ around the

neck. It is not clear around whose neck this ‘black thing’ was seen. The witness

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testified that they (ie Rodwell Sihela and Adour Mutalife) said that they went to fight

at the police station, that the fight did not last long because they were few and ran

away from there.The witness testified that not many days passed after that day when

the police arrived at the village and ‘picked them up’.He knew Rodwell Sihela as a

cousin and Adour Mutalife as a friend of Rodwell. This witness identified Rodwell

Sihela as accused no.30 but failed to identify Adour Mutalife. During cross-

examination by Mr Neves, the witness testified that he was unable to provide the

dates during the month July when they had those conversations since he had

forgotten the dates. The witness testified that the next time he saw those two

individuals was during August. The witness denied that he was ever shown and was

ever explained where the accused would be seated and testified that it was the first

time for him to be in the courtroom.

[586] The accused testified that he was arrested on 10 August 1999 at Nyanda

Nyanda village in Gunkwe area in the Caprivi Region. He was then 19 years old. He

testified that he was arrested at the courtyard of his aunt, the mother of his cousin,

Rodwell Sihela, accused no.30. The accused testified that he was questioned and

thereafter assaulted at the courtyard. He was then taken into the bush and was

again assaulted. Thereafter, he was taken to the police station in Katima Mulilo

where he was put in a room in which there was a corpse. After a few minutes, he

was taken to Mpacha military base and flown to Grootfontein where he was kept in

solitary confinement until he was taken to court on 23 August 1999. The accused

testified that he left for Botswana on 12 November 1999 when he was 18 years old

for educational purposes and stayed in Dukwe. On 13 July 1999, he returned to

Namibia through repatriation. The accused testified that he had no political affiliation

at the time of his arrest.

[587] The accused testified that the witness George Sizuka alleged during Sizuka’s

testimony that the conversation took place during the year 2002 at a time when he

(ie accused) was already in custody for 3 years and that the evidence of this witness

in that regard must be false. The accused testified that no other witness identified

him in court. It must be stated at this stage that the evidence by Sizuka was that he

had a conversation with the accused during August 1999 and not during 2002 as

testified by the accused. The accused was mistaken in respect of this point. The

accused testified that he did not know George Sizuka and that on the day this

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witness had identified him, he did so even before the procedures were explained to

this witness and this he found strange since from the testimony of this witness he

met the accused only on two occasions in 2002 when he (accused) was in prison. It

is correct that the witness testified that he had seen the accused previously only on

two occasions. The accused further explained that he sat next to the only female

interpreter when he was identified and that it was easy for anyone to have told the

witness that he was seated next to the female interpreter. This was however never

put to the witness when he identified the accused on the first occasion.

[588] During cross-examination, the accused admitted that he left Namibia through

an ungazetted border crossing into Botswana. He testified that he pleaded not guilty

to the charges because Minister Jerry Ekandjo addressed them in Botswana and

asked them to come back to Namibia and that the Minister had indemnified them

from prosecution. The accused admitted that he pleaded not guilty to all the charges

and put the State to prove each and every allegation and at that stage had never

mentioned about unlawfully exiting the country, neither did he testify about it in his

evidence-in-chief. The accused testified that prior to his arrest he only knew Rodwell

Sihela. The accused admitted that during his evidence-in-chief he never testified

about the charges relating to a demonstration in or near a court building. The

accused testified that he was put in a room in which there was a corpse in order to

instill fear in him, because a police officer told him that he would be killed like that

person. The accused testified that on 10 August 1999, he was arrested together with

Rodwell Sihela.

[589] The accused confirmed that he was asked during his evidence-in-chief when

was the first time that he had appeared in a court of law and he said 23 August 1999.

It was then put to the accused that he was convicted on 19 January 1998 to which

the accused replied that he would not recall that. He was asked whether he could not

recall that he was given a suspended sentence that day and the accused replied in

the affirmative. The accused was asked when he had changed his appearance when

the witness was asked to re-identify him. The accused replied that it was pure

speculation since he had never changed his appearance. The accused was asked

whether the testimony of a witness (a police officer), who had testified to that effect

was incorrect, and the accused confirmed it. The accused however conceded that

the evidence of the police officer was never challenged in court to the effect that he

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had changed his appearance. The accused explained that it was not challenged

because it was pure speculation.131

[590] The accused was asked whether it was not pure speculation on his part that

the witness Sizuka had referred to the year 2002. The accused was adamant that

the witness referred to the year 2002 and referred the prosecutor to a specific page

in the record in support for his evidence that reference was made to the year

2002.132It appears from the record that the witness was asked during cross-

examination by Mr. Kachaka on which date he claims to have heard from Rodwell

Sihela about the cutting of the Caprivi to which the witness replied that he does not

know the date. The witness was then asked during which year and the witness

replied 2002. When asked what he heard in 2002, the witness replied that Caprivi

should be cut. The witness replied that he was sure about the year. After Mr Neves

cross-examined this witness there was no re-examination by Mr January. This

explains the reference to the year 2002 by the accused person. The witness

however during his evidence-in-chief referred to the year 1999. It is logical that the

witness could not have heard about the cutting of the Caprivi from either the accused

or Richwell Sihela since both of them were in custody by 2002. This witness was

clearly mistaken about the year 2002 during cross-examination by Mr Kachaka.

[591] It was put to the accused that he was totally disregarding the evidence-in-

chief of that witness. The accused disagreed. The accused testified that from 31 July

1999 until 8 August 1999 he stayed with his sister in her house at New Look, Katima

Mulilo, that he was unemployed and did nothing at the house at his sister. On 8

August 1999 he left for his aunt’s place in Gunkwe about 40 km away from Katima

Mulilo. On 9 August 1999, he was at Gunkwe, doing nothing. On 10 August, he was

arrested at his aunt’s place, Gunkwe area. The accused testified that he never heard

of the UDP and never heard about the issue of secceding the Caprivi Region. The

accused testified that until November 1998, he had never heard about a prominent

politician and a chief who had gone to Botswana. The accused testified that until the

time that he went to Botswana he had never heard that there was an exodus of

people to Botswana.

131 P.38390 - 38391132 P. 19478

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[592] The accused testified that he met Oscar Mwisepi in Dukwe, but that he does

not know Lascan Sikosi. The accused testified that no witness testified that he was

soiled with dirt or had fibres around his neck and that the Adour Mutalife Chika

referred to by the witness John Libuku is not him. The accused agreed that he did

not testify about that because the witness did not refer to him. The accused

conceded that he did not testify in his evidence-in-chief that he was not involved in

the attack on 2 August 1999 since no witness had testified to that effect. The

accused testified that the witness Sizuka had testified that he (Sizuka) only came to

know him (accused) in 2002. This is however not supported by the record. The

accused conceded that counsel never cross-examined the witness in respect of that

testimony because it was obvious that he (accused) was in prison. The accused

testified that he heard testimonies in court that the exodus to Botswana was on the

lips of everyone, especially after 26 and 28 October 1998 but could not explain how

this could have been put to witness. The accused replied that this was never put to

the witness George Sizuka who had identified him and the best person to answer

this was counsel himself.

[593] The accused testified that when he left for Botswana for education, he had his

last exams results with him, went there without a study permit, without a passport,

did not know the institution where he would be studying, that it was enough for him

that his friend told him that there was ‘education in Botswana’. The accused denied

that he went to Botswana in order to fight for the liberation of Caprivi by military

means. The accused admitted that his goal for going to Botswana was not achieved

because he did not attend any classes but denied that he, like so many others like

him, had been fooled in this regard. The accused admitted that he never made any

inquiries about when he would receive this education in Dukwe.

[594] The accused, when confronted with what he had said according to the State

witness, replied that John Libuku never said that he was referring to him. The

accused when confronted with what was said about fighting the Government of

Namibia replied that John Libuku never referred to him, ie that the person he was

referring to as Chika Adour Mutalife was accused no.2. The accused testified that he

cannot dispute the testimony of John Libuku namely that Libuku was recruited to be

part of the attack on Katima Mulilo. The accused disputed that Libuku was recruited

by Rodwell Sihela and Adour Chika Mutalife.

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[595] It was submitted by Mr. July that the date of the arrest of the accused is not

material to the charges in the indictment. I agree that not much turns on the date of

his arrest. It is common cause that the accused was arrested only once at the

courtyard of his aunt at Nyaunda Nyanda village in the Gunkwe area together with

Rodwell Sihela. It is further common cause that he had been arrested after the attack

on 2nd August 1999. It was further never put in dispute that two State witnesses ie

George Sizuka and John Libuku witnessed the arrest of two individuals ie accused

no.30 and Adour Mutalife Chika.

[596] Mr Neves in his heads of arguments raises a suspicion about the ability of the

witness George Sizuka to be able to identify the accused in one occasion and

thereafter failed to identify him on the second occasion. I have referred to this part of

the record hereinbefore and do not wish to repeat why this court accepted the

identification of the witness Sizuka. The testimony of the police officer Japhet Ndadi

Ashipala was not disputed that the accused had a haircut and was wearing

spectacles on the day the witness was asked to re-identify him. Mr Neves tried to

show during the cross-examination of this witness that if Sizuka had known Adour

Mutalife, he should have been able to identify him on the second occasion as well.

One should however not lose sight of the fact that the witness had seen the accused

only on two occasions, years before his testimony and that to identify a person in a

group of more than 120 individuals is not the same when a group consists only for

example of 10 individuals. The witness Sizuka during cross-examination denied that

he was ever shown or was ever explained where the accused would be seated. The

witness further denied that prior to his testimony a photo of the accused was shown

to him. The testimony of the witness was not disputed. When Mr Neves during cross-

examination put it to the witness that he was very quick to point out the accused the

previous day, the witness replied that by that stage he had already seen the

accused.133

[597] The testimony of John Libuku that the accused and Rodwell Sihela had told

him that they went to fight at the police station and that the fight did not last long,

since they were few and ran away was never disputed by the accused during cross-

examination. The accused also never denied this evidence during his evidence-in-

133 P.19493/4

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chief and this evidence stands uncontradicted. The reply by the accused that the

witness never referred to him Adour Mutalife Chika, accused no.2, will hereinafter be

considered.

[598] It is common cause that the accused was arrested, after the attack, on 10

August 1999. The State did not dispute the date of his arrest. It was never suggested

at any stage that the two State witnesses George Sizuka and John Libuku did not

observe their arrest by the police. From the testimony-in-chief by the witness George

Sizuka, it is clear that he and his brother John Libuku had conversations with the

accused and accused no.30, prior to the attack on 2 August 1999. The testimony of

Sizuka that he heard about the issue of the cutting of Caprivi from Richard Sihela

during 2002 is a conspicuous error since at that stage both the accused and Richard

Sihela (accused no.30) were in custody, they were arrested on the same day. It was

thus very opportunistic of the accused to exploit this apparent mistake with an

argument that he could not have had conversations with the witness during 2002

because he was in custody.

[599] To return to the issue of identification, the following needs to be said: the

testimonies of George Sizuka and John Libuku corroborate one another regarding

the vein of the discussions with accused no.30 and Adour Mutalife Chika prior to the

attack on Katima Mulilo. The accused argued in court, because John Libuku did not

identify him in court, that the Adour Mutalife Chika mentioned by the witness was

someone else, not accused no.2. The fallacy of this argument is that it disregards his

positive identification by the witness George Sizuka and the testimonies of the two

State witnesses that they were together (in each other’s company) when they had

these conversations. Thus, even if John Lubuku failed to identify Adour Mutalife

Chika, George Sizuka did. There is furthermore no evidence to the effect that a third

person had accompanied accused no.30 and the accused person. The only other

person present with Richard Sihela was Adour Mutalife Chika, and this Adour

Mutalife Chika was identified as accused no. 2 in court. Therefore, when John Libuku

testified about an Adour Mutalife Chika, he could only have referred to accused no.2.

[600] The evidence of the accused that he went to Botswana for the purposes of

education is highly unlikely in view of his answers given during cross-examination in

this regard. The accused was an evasive and argumentative witness who once he

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had latched onto his ‘2002- argument’ stuck to it. Similarly, his argument that the

Adour Mutalife Chika referred to by the State witnesses was not accused no.2, was

adhered to until the end of his cross-examination.

[601] If one has regard to the uncontroverted evidence in respect of the contents of

a conversation after the attack in respect of a fight at the police station, the

appearance of the accused person (ie was soiled with dirt), the conversations prior to

the attack, the bare denials by the accused and the fact that the accused was a poor

witness, compel me to conclude that the accused participated in a conspiracy with

hostile intent and with the aim to secede the Caprivi from Namibia by violent means

or at the very least had knowledge thereof and failed to alert the relevant authorities.

Kingsley Mwiya Musheba (accused no.9)

[602] Lemmy Kasoondaha Haufiku, a member of the Namibian Defence Force

(NDF) who held the rank of Captain during the year 1999 testified that he was

stationed at Mpacha Military Base as an interrogating officer and was in charge of all

captured materials of the ‘enemy’. On 2 August 1999, he was asleep when he heard

the sound of an assault rifle being fired and the sound of a bombshell. He took his

AK47 and went to investigate and established that the sound came from the

quartermaster. He met some of his colleagues and subsequently there was an

exchange of fire with unknown persons. When the firing ceased, they searched the

area and captured ‘four enemies’. Those persons were taken to the interrogation

room where he interrogated them. One of these persons was identified as Raphael

Lifumbela. The other three identified themselves, on his request, as Silvester

Ngalaule, Musheba Mwiya and Christ Ntaba. Raphael Lifumbula was requested to

identify some of the enemy that had been killed. Lifumbela identified three bodies as

Chizza, Albrin Mwabi and Herbert Muketela. They also seized material which were

found next to the bodies and around enemy positions. These included a military bag,

a military sleeping bag, various other materials, as well as a list of names, an Ak47

of Chinese origin with 17 rounds of live ammunition, a pistol machine gun, 60 mm

mortar, a pipe and also a motor shell. All these materials were handed in at the

police station pending an investigation.

[603] He testified that a person holding the rank of Captain in the NDF is a

commissioned officer. This witness further testified that he was assisted during the

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interrogation by Corporal Libebe who acted as an interpreter, interpreting from Lozi

to English. He testified that Raphael Lifembela was identified by Corporal Libebe

because he recognized him. He testified that those captured were interrogated

separately (one by one). During cross-examination, he testified that after they had

interrogated those persons who had been captured, they were kept in the

interrogation room and later that morning handed over to members of the Namibian

Police Force.

[604] It was put to the witness that he testified about an event he had not witnessed

personally and that a report was made to him. The witness denied this. It was further

put to the witness that there is no occurrence book that will show that on 2 August

1999 at around 10h45, he had handed over to Inspectors Theron and Karstens

prisoners of war. The witness replied that the question should be directed at

Inspector Karstens. The witness was directed to his witness statement which did not

mention that such a handover took place. The witness replied that he mentioned it to

the officer who took down his statement.

[605] Kennedy Muhisami Teyeho testified that one Kingsley Mwiya Musheba

attended a meeting at Kahenda during the year 1998 during which seccession was

discussed. This witness failed to identify Kingsley Mwiya Musheba in Court. Boyd

Nasilele Mambo testified that he was on a GRN Tata truck driven by Fabian

Simiyasa on 1st August 1999 to Makanga, that Kingsley Musheba went with him from

Makanga to Mpacha military base. This witness was unable to identify Kingsley

Musheba as one of the accused persons before court. Johnny Katanga Shapaka

testified that on 2 August 1999, he was employed by the Namibian Defence Force

and held the rank of major. At that stage, he was a company commander and the

acting commanding officer of Mpacha Military Base. At about 03h00, he was awoken

by a blast. He investigated and encountered soldiers outside the building who called

him. He observed a dead person under an orange tree, two further bodies were

discovered. In the vicinity of these bodies, they found a 60 mm mortar, two shells of

RPG7, about three 60 mm shells. He took those weapons to the duty room. He left in

the company of a driver in a Caspir and proceeded in the direction of the airport

where he heard the sound of gunfire and then returned to a roadblock. When he

returned, he was informed that three rebels had been captured and he went to the

conference hall in order to see them. He subsequently received reports about

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incidents at the NBC and at the police station. Eight of his soldiers were injured. He

was then informed that the captured rebels were Raphael Lifumbela, Sylvester

Ngalanle, Mushaba Mweya and Chris Ntaba. He was subsequently informed that

three soldiers had been killed at the shopping centre.

[606] The witness was referred to Exhibit Q (compiled by D/Sgt D.J.Mouton) photo

31 and testified that the person on the photo looked like Raphael Lifumbela. The

witness was shown photo 32 and stated that that individual was also captured and

that he knew him. The person on photo 33 was identified to have been together with

Raphael Lifumbela. The witness was shown what was referred to as a deployment

list which indicated the targets of attack written on two sheets of paper as well as

names of individuals. These two sheets of paper were received provisionally as

exhibits and marked Exhibits DAY and DAZ. The witness also testified about eight

persons who had been apprehended at Mpacha village and brought to Mpacha

Military Base.

[607] During cross-examination by Mr. Neves, the witness was asked whether he

could exclude the possibility that the soldiers could have been at Cowboy compound

in Ngweze and the witness replied that he could not confirm because the soldiers

were on patrol and scattered all over the town. The witness was also asked about

the period of time that he had spent with the four captured rebels and replied that he

could not tell the exact time which he had spent with them. It was never during cross-

examination put to this witness or to Haufiku that the accused was arrested at

Cowboy compound in Katima Mulilo.

[608] The accused testified that he was born in Kayenda area in the Caprivi Region

and was arrested on 2 August 1999 in Cowboy (Compound) Katima Mulilo. Prior to

his arrest, he was resting at his brother’s house and heard the noise of fire arms until

sunrise. In the morning, the shooting continued. Between 10h00 and 11h00, soldiers

and police officers arrived there at Cowboy Compound. His name was asked and he

responded by saying: ‘Kingsley Mwiya’. His clothes were then torn, he was

blindfolded, his hands and feet were tied, he was assaulted and thrown into a vehicle

and was transported to place which he later identified as a base for soldiers. Photos

were taken and he was again assaulted. The next day, he was flown to Grootfontein.

He testified that he was never in Dukwe, had no political affiliation and attended no

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political meetings. The accused denied that he was arrested at Mpacha military

base.

[609] During cross-examination, he testified that the name he provided was

‘Kingsley Mwiya Musheba’. The accused testified that he did not know who arrested

him and was not aware of anyone else who had been arrested with him. He testified

that he only came to know that other persons had been arrested when they went to

court on 23 August 1999 and did not know any of his co-accused. The accused

testified that he only knew the persons at the village where he used to reside but did

not know anyone in the rest of the Caprivi Region. The accused testified that he did

not know Raphael Lifumbela, Sylvester Ngalaule, or Chris Ntaba; does not know any

person with the surname of Mwilima; that he does not know Mwiya Musheba. The

accused testified that he complained to the Legal Assistance Center (LAC) of being

assaulted. The witness testified that whilst he was in Grootfontein, a person in

civilian clothing who appeared to be a police officer from the disciplinary committee

came to him and he laid a complaint of the theft of his wallet but did not inform this

individual about any assault perpetrated on him. The accused testified that he did not

know about a shooting incident at Mpacha military base, but does not dispute that 4

persons had been arrested at Mpacha military base.

[610] The accused was referred to the cross-examination by Mr. Kachaka where

the witness Johnny Shapaka was referred to Exh. Q and photos 31, 32, and 33 and

where Shapaka testified that the persons depicted on those photos were at Mpacha

military base on 2 August 1999. The accused was then asked whether Shapaka did

not make an identification in respect of photo 32. The accused disagreed. The

accused agreed that he had previously in respect of the same photo 32 made an

identification of himself. The accused said:134 ‘Yes, I said the face it is me who is

there’. The accused however took issue with the name Mwiya Musheba stating that

his name is Kingsley Mwiya Musheba. The following was put to the accused during

cross-examination:135

‘What I am saying on the face, on the person reflected in this photograph you did an

identification, correct?...

That is correct, My Lord.

134 P.38822 lines 10-11.135 P.38822 lines 17-23.

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Now, the same that Shapaka did identifying a person from the face on the appearance do

you agree with me that he also made the same identification that you did forget the name?...

I do not see it that way, my Lord.’

[611] The accused was asked whether he could dispute the evidence of Shapaka

that the person on photo 32 was captured at Mpacha to which the accused replied

that he disputes it. The accused was asked whether this was not disputed at the

stage when Shapaka testified and the accused said something to the effect that his

lawyer had stated that the witness (Shapaka) did not ‘pinpoint’ him. This obviously is

a reference to the testimony of Shapaka when asked to identify persons in court

mentioned by him during his testimony, he (ie Shapaka) did not do so. The accused

confirmed that the person on photo 32 is a client of Mr.Neves. It was further put to

the accused that on the timeline that the shootings took place around 03h00 and

persons were captured about 05h00, none of the captured persons could have been

in Katima Mulilo at that stage. The accused replied that he did not know because he

was not there, ie amongst those arrested at Mpacha military base.

[612] The accused testified that he consulted with a person attached to the LAC in

order to claim compensation for the assaults perpetrated on him by the soldiers and

that he provided the required information to that effect namely that he was arrested

at Cowboy and was assaulted. The accused was however unsure whether he had

signed any document. Exhibit EMG is an affidavit deposed to by one Mwiya Kingsley

Musheba on 17 July 2001 at Grootfontein prison in which the deponent describes

how he was arrested. It is stated that he was arrested on 2 August 1999 at about

10h00 at the BP Service Station in Katima Mulilo while he was waiting for a lift to his

village Kaenda, by Captain Henry Mwilima (a Captain in the NDF), sgt Evans

Simasiku, Patric Liswani, Haipa and sgt Mbinge and was assaulted. The accused

denied that it is his signature which appears on the affidavit.

[613] The accused during cross-examination denied that prior to his arrest he had

known the aforementioned officers. Exhibit EWE is a letter from the LAC in which

the Chief of the Namibia Defence Force is informed of a claim for damages by

Kingsley Mwiya Musheba in respect of an assault perpetrated on him. In this letter it

is stated that the accused was arrested on 2 August 1999 at his house in Kayenda

village by members of the police force unknown to him. Exhibit EWF is a copy of a

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combined summons in which the plaintiff is reflected as Kingsley Mwiya Musheba as

plaintiff and the Minister of Home Affairs and Minister of Defence cited as first and

second defendants respectively. Claim A relates to an alleged assault perpetrated on

him at Mpacha Military Base and Claim B in respect of wrongful and unlawful arrest

by members of the Police unknown to the plaintiff during the morning of 2 August

1999 at his house at Kayenda village. Attached to the combined summons was a

power of attorney signed by one Kingsley Mwiya Musheba on 6 June 2000.

[614] The contents of Exhibits EWF and EWE are similar in so far as it relates to

where the deponent was arrested. The accused does not exclude the possibility that

he had indeed signed Exh. EWF, he said he does not know if he had signed it, but

denied that the signature on the power of attorney was his signature. When the

accused was asked the amount that was claimed for damages, he stated the amount

of N$550,000.00. The amount claimed in Exh.EWF in respect of Claim A is

N$300,000.00 and in claim B, N$250,000.00. The place in Exhibit EWF where, in

terms of the particulars of claim, he was arrested, was Kayenda village whereas in

his testimony it is stated as Cowboy compound in Katima Mulilo. In claim A, it was

alleged that the plaintiff at Mpacha Military Base, near Katima Mulilo, found himself

lying on the floor, blindfolded, handcuffed and his legs tied ‘from approximately 2

August 1999 until sometime on 4 August 1999’. The accused however testified that

he was flown to Grootfontein on 3 August 1999. Nowhere in Exhibit EWF is it

mentioned that he was arrested at Cowboy Compound in Katima Mulilo.

[615] It is common cause that the accused was arrested only once. If he had been

arrested at his house in Nayenda village, then it follows that his testimony that he

was arrested at Cowboy Compound must be false. The question which needs to be

answered is: Why would a person tell a lie in respect of the place where he was

arrested? The answer, in my view, would lie in the inescapable conclusion, namely

to admit that he had been arrested at Mpacha military base, he would have no

defense against the charge of high treason.

[616] The accused by testifying that he was arrested at Cowboy Compound and not

at Mpacha military base (the scene of the crime) actually raises an alibi as his

defense. The accused pleaded not guilty and never disclosed his defence of an alibi

as he could have in terms of s 93 of Act 51 of 1977. The defense of an alibi was also

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not disclosed during cross-examination. The defence of an alibi was first raised at a

late stage when the accused gave his testimony-in-chief. It is trite law that the onus

is on the State to disprove an alibi and no onus on an accused person to prove his or

her alibi. The ultimate test is whether there is proof beyond reasonable doubt that the

offence has been committed, and a court in considering this onus may take into

account that the accused had raised a false alibi. In S v Zwayi136, Ebrahim AJ said:

‘It should be apparent that if the Court is properly to assess whether there is a

reasonable possibility of the alibi being true, the details thereof should be provided since in

its absence the accused’s defense is simply a bare denial. In my view, if these details are

only disclosed, as in the present instance, at the late stage when the accused testified, the

value to be accorded to the alibi may be adversely affected. I cannot see on what basis an

accused can claim that he would be prejudiced in the presentation of his defense if he had to

disclose the details of his alibi defence during cross-examination of the State’s witnesses.

On the other hand, if he withholds same until he testifies, there is prejudice to the State since

the State will not have been provided with the opportunity of leading evidence which could

expose the alibi as being false’.

[617] The fact that an accused has no onus in respect of his or her defence of an

alibi does not mean that the defence had no duty to present evidence in support of it.

The accused’s mere ipse dixit possesses little persuasive force. In S v Thebus and

Another137, one of the issues was the right of an accused to remain silent after his

arrest by a police officer in connection with a defence of an alibi. Moseneke J in the

main judgment referred to the defence of an alibi as follows138:

‘[60] An alibi defence has often generated judicial debate on whether it is an

exception to the right to silence. In R v Cleghorn139 the peculiarity of an alibi is explained as

follows:

“(T)here is good reason to look at alibi defence with care. It is a defence entirely

divorced from the main factual issue surrounding the corpus delicti, as it rests upon

extraneous facts, not arising from the res gestae. The essential facts of the alleged

crime may well be to a large extent incontrovertible, leaving but limited room for

manoeuver whether the defendant be innocent or guilty. Alibi evidence, by its very

136 1997 (2) SACR 772 (CK) at 778 h-j.137 2003 (6) SA 505 (CC).138 Par 60.139 100 CCC (3d) 393 (SCC)

217

nature takes the focus away from the area of the main facts and gives the defence a

fresh and untrammelled start. It is easy to prepare perjured evidence to support it in

advance.” ’

[618] It has been held that proof of a false alibi affects the credibility of an accused

person and does not prove the commission of the offence beyond reasonable doubt.

However, in Thebus, the following occurs in a concurring judgment140:

‘One further point needs to be made. It should be clear from what we have said that

we do not see that a valid distinction can be drawn in this context between adverse

inferences going to guilt, and adverse inferences going to credit. There is of course a

conceptual difference between inferences going to credit and inferences going to guilt. But in

the context of an alibi, the practical effect of the adverse inference to be drawn for the

purposes of credit, namely, that the alibi defense is not to be believed, will often be no

different to the effect of the inference to be drawn with respect to guilt, namely that the late

tender of the alibi suggests that it is manufactured and that the accused is guilty.’141

[619] It is admitted by the accused that photo 32 in Exhibit R is a photo of himself.

Witness Shapaka identified the person on photo 32 as one of the persons arrested in

the early hours of the morning on 2 August 1999. This evidence was never disputed.

Lemmy Haufiku testified that one of those arrested identified himself as Musheba

Mwiya. The accused testified that amongst the accused persons before court, he

does not know one Musheba Mwiya. There is no such person before this Court

according to the accused. The accused was an untruthful witness. His version that

he had been arrested at Cowboy Compound is rejected as false.

[620] I am satisfied that there is proof beyond a reasonable doubt that the accused

was one of the individuals arrested inside Mpaha military base in the early hours of

the morning on 2nd August 1999, that an overt act was proved and that the only

reasonable inference to be drawn is that he had the necessary hostile intent.

Clients of Mr Kachaka

Richwell Mbala Manyemo (accused no. 115)

140 Written by Goldstone J et O’Regan J.141 See also the judgment of Yacoob J at par [112].

218

[621] Oscar Mwisepi testified that Richwell Manyemo was amongst a group which

was given then task of organising rebels after the attack on 2 August 1999. He

testified that he, himself, was given the task by Richwell Manyemo and Lorenz

Simbozi to go to Masida in order to meet the group of John Samboma, who ‘happens

to be one of the accused here’. This witness identified Richwell Manyemo as

accused no 115 in court.

[622] This court had (supra) referred in more detail to the testimony of this witness.

Mr Kachaka in his heads of argument submitted that Mwisepi was not a credible

witness Counsel referred to the testimony of the witness that he was tasked by

Richwell Manyemo and Lorenz Simbozi to meet the group of Samboma. The court

was further referred to the testimony of the witness142 where he testified that this

group was divided and that he (i.e. the witness himself), Lorenz Simbozi, Francis

Kaveto and another person were assigned to work along the road to Linyati, and

Richwell Manyemo and others were assigned to work along the Kangolo. The

witness then testified that when the instructions were issued for different people to

be assigned to work along different roads he (i.e. the witness) was not present. It

was submitted by Mr Kachaka, and correctly so, that what was testified about

assigning, was hearsay.

[623] It was submitted that the witness when asked what other task he performed

after the attack he replied that those whom he had been working with some fled to

Botswana, some were just afraid of the police, others went to look for employment

and that from that time their idea was sort of interrupted. It was pointed out that

during cross-examination by defence counsel Mr Kruger this witness stated that the

committee was his idea. It was submitted that Mwisepi was taken to task during

cross-examination when he first testified that all Caprivians were in favour of the idea

of seceding the Caprivi region, which he later changed to all Caprivians at Dukwe

Refugee camp, and still later when confronted with clear examples from his own

testimony of people who were not in favour of the idea, he conceded that fact.

[624] It was submitted that Mwisepi exaggerated by first stating that there was only

one idea to secede by military means, yet when confronted with his own testimony in

chief, he conceded that there was also the way of negotiating the independence of

the Caprivi Region. It was further submitted that from the cross-examination of

defence counsel Mr Nyoni, when he dealt with this same issue (i.e. the excursion

142 P. 713

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into the bush by Mwisepi to meet the group of John Sambona), argued that Mwisepi

was regarded as a spy, a person not to be trusted prior to the attack, that Mwisepi

did not participate in the attack and the contradictory reasons provided by him, and

that he had mislead the NBC after his return through repatriation regarding his future

involvement in the issue of secession. It was submitted that Mwisepi was a single

witness and that his testimony should be approached with caution. It was submitted

that Richwell Manyemo was just put in the group by the witness based on hearsay

because the person the witness worked with was Lorenz Simbozi and Simbozi was

not brought to court to testify.

[625] Michael Mutaniniye Tubazumbwe testified that he (i.e. the witness himself)

went to Dukwe because Richwell Manyemo explained to him since he (i.e.

Tubazumbe) is from the ‘military’ he should go and train people there. The witness

testified that he had this conversation during November 1998. According to the

witness the accused arranged transport which eventually took him to the border with

Botswana and thereafter he crossed with other person into Botswana. This witness

identified Richwell Manyemo in court as accused no. 115. The witness testified that

upon his return from Botswana the accused confronted him by asking him why he

had come back. He testified that the accused referred to his (accused’s) brother as a

coward because he had returned from Botswana. During cross-examination it was

put to the witness that the accused was the last born and could not have had a

younger brother. The witness replied that he was in school together with the younger

brother Frederus Manyemo. The witness conceded that this name does not appear

in his first witness statement. He testified that the name appears in the second

statement deposed to months later because he then recalled the name and provided

it to the police. It was pointed out by counsel that the name the witness provided to

the police was ‘Muyakwe’, a name not mentioned in court. The witness conceded

that it is reflected in his statement that the name given was ‘Muyakuyi’ and that it is

also reflected in the statement that he does not know the other names. The witness

conceded that in a statement deposed to by him on 27 November 2000 he referred

to an incident which occurred during March 2000 namely the conversation which he

had with the accused and his younger brother. The witness conceded that there was

nothing in the statement that the accused spoke to him during 1998 before he left for

Dukwe.

220

[626] It was put to the witness that the accused worked at Omega 250km away

from Katima Mulilo and that during November he was at Omega and never came to

Katima Mulilo. The witness replied that on weekends he used to come to Katima

when he was off. It was put to the witness that the accused did not come home

during March 2000 and did not have a conversation during March 2000 with the

witness. The witness disagreed.

[627] There was no re-examination. There was no evidence presented why the

name ‘Muyakuyi’ appeared in his second statement and why there is no mention

made in the first witness statement that the accused had recruited the witness to go

to Botswana. Hamlet Kachibolewe Muzwaki testified that he came to know about the

goal of cutting the Caprivi region from Namibia when he visited the courtyard of

Richwell Manyemo, his uncle, during December 1998. Manyemo told him as follows:

‘What are you still doing while the others have left. That he started telling me that the

government of Namibia has got a discrimination and they are mistreating us. Only

Owambo people are the people who are receiving jobs. So the best way that we will

do is to cut Caprivi from the rest of Namibia. He continued telling me that I must go

everything is ready and I must get a gun to liberate Caprivi.’

[628] The witness further testified about an incident at night when he saw John

Samboma and two white men arrived at the house of Richwell Manyemo in a 4X4

vehicle and that John Samboma was carrying a big gun. The witness testified that

the visit lasted about an hour but he could not hear what was said. During cross-

examination it was put to the witness that the accused never had the conversation

testified to by the witness. The witness disagreed. During cross-examination the

witness conceded that he never mentioned in his witness statement that John

Samboma arrived there with a big gun and that he told the police that the white

people came to look for African artefacts (curious). It was put to the witness that the

accused was running a shop and that he had to order things for the shop. The

witness replied that the shop had ‘collapsed’ a long time ago and that there was

nothing in the shop. The witness was referred to his evidence-in-chief during which

he stated that he wanted to buy something the next day and went to the shop. The

witness agreed that he said so. During re-examination the witness testified that he

recalled about the big gun when he arrived ‘here’ (in Windhoek) and also recalled the

second visit of the two men to the house of the accused.

221

[629] Raymond Kamwi Sezuni testified he was employed at Telecom Namibia as

branch manager at Katima Mulilo. The witness was provided with a copy of a printout

for telephone number 4140 and testified that this number was allocated to Manyemo

Richwell Mbala. The printout reflects that telephone calls were made to Denmark.

The first call was made on 20 October 1999 and the last on 23/25 November 1999.

Calls were also made to Botswana. The first call was made on 25 December 1999

and the last on 14 March 2000. During cross-examination, the witness conceded that

those calls did not prove that Richwell Manyemo actually made the phone calls since

any other member of his household could have made those telephone calls. In

addition the numbers called cannot reflect who was called or which part of the

country was called.

[630] The accused testified that he was arrested on 18 May 2000 at Okalongo in

the Oshana Region. The accused denied that he was part of a group, testified to by

Mwisepi, which was given a task of organising the rebels after the attack; that he did

not know Mwisepi and saw him for the first time when Mwisepi gave evidence; that

he never instructed Mwisepi to go to the group of John Samboma; that he did not

know about a group which organised a second attack; that he has three wives and

twelve children; that no one of his children went to Botswana; that he never

personally phoned Botswana or Denmark; that he did not know the witness Michael

Tubazumbe and saw him for the first time in the witness box; denied that he told the

witness to go to Botswana because of his knowledge of military issues; did not know

that the witness went to Botswana; that he was never at loggerheads with the

witness because he returned from Botswana; that he is his mother’s last born and

has not younger brother; denied that the witness was his neighbour since childhood.

[631] The accused testified that he never told the witness Muzwakwi anything about

discrimination by the Government of Namibia and mistreating them; denied that he

told the witness to get a gun in order to liberate the Caprivi Region; that he knows

the witness very well; that Muzwakwi is his grandchild and that in the year 1998

Muzwakwi was 10 years old; that his first born was 24 years old in 1998; that the

mother of Muzwaki is his biological daughter.The witness denied that John

Samboma had ever been to his courtyard and denied that two white men came to his

courtyard during the night. During cross-examination by Mr July the witness was

asked whether he had ever been out of the country (Namibia). The accused replied

in the affirmative, namely, that he left Namibia on 18 November 1998 for Denmark.

222

The accused testified that he did not go there to visit someone but to do certain

projects; that he returned to Namibia on 25 November 1999; that he lodged in a hotel

in Denmark (Mucar Hotel); that the projects were in connection with animal

husbandry. The accused could not recall the name of the place they went to see

those projects. The accused testified that they met an old white man and his wife

whose names he doesn’t know. The accused testified that they were two who

travelled from namibia and the other person in his company was Michael Siyanga.

When the accused was asked who paid for their airfare he was ambivalent saying:

‘I believe it is the Government because those two white men are the one that paid

our ticket.’

[632] The accused testified that he did not know whether the ‘money came from the

pockets of those white men or it came from the Government’. When the accused

was asked in what form Government paid for the tickets he replied that the tickets

were paid in cash because one cannot board an aeroplane on credit. The accused

testified that he did not know were those white people stayed adding that he

concluded that they were from Namibia because the Government had sent them to

help the community; that the white men came to his village Bilto and visited villages

and areas; that they just saw the vehicle stopped and the white men embarked from

the vehicle ‘the old one with his wife’, and that the white men asked for the Induna;

that he was chosen by the people to accompany the two white people to Denmark;

that he did not ask the white people where they were coming from, or who they were,

or who they represent; that they (the white people) did not inform them about their

names by explained that they were sent by the Government; that the white people

not tell them which Ministry they represented; that by the time he had spoken to

those white people he had already been expelled from the Police Force143; on his

return he was reinstated; that he cannot deny that there were rebels in the bush after

the attack on 2 August 1999; that the reason why he was expelled according to a

letter he had received was because he had absconded from work from 4 December

1998, but that he was on leave during December; that he signed a visa application

form but did not complete it on 9 November 1999; and that he was unemployed at

that stage.

[633] The accused was asked why it appears on the visa application form that he is

a pensioner, and replied that he was not a pensioner as did not complete the

143 Expelled on 31 March 1999.

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application form. The accused admitted that he provided information to someone in

order to complete the visa application form; that he signed indicating the correctness

of the information contained in the application form but not to confirm that he was a

pensioner. When the accused was asked for an explanation why it was indicated on

the visa application form that he was a pensioner he became evasive by first pointing

out that he only applied for pension during 2009 when he was in prison. The

accused eventually said:

‘My Lord there is nothing I can say on that what is written there. I so not even know

why it is written like that.’

[634] The accused was further confronted with an inscription on the visa application

for that the journey would be financed by him personally. The accused gave an

inconsequential reply but concluded by saying that it would have been impossible for

him to have generated N$ 10 000.00 whilst he was unemployed. The accused

agreed that it was a criminal offence to consciously provide incorrect information on

official document. The accused testified that the passport he had used to travel to

Denmark, was taken by police officer Popyeinawa, and explained that after his arrest

Popyeinawa asked him about his passport and that he gave Popyeinawa a

declaration which he made on 6 April 2000 in which he had declared certain items

including his passport, to be missing. This declaration was made at Okalongo: the

witness testified that he does not know when the passport got lost.

[635] The accused confirmed that in the declaration he stated that the passport got

lost on 1 February 2000 together with a driver’s licence and his identity document.

The accused explained that he made the declaration only two months later since had

has three wives and three houses and had to made enquiries (presumably from the

wives). The identity document and driver’s licence were discovered after he had

made the declaration and he thought that he could have lost his passport in Rundu

at one of the shops there. During cross-examination the accused was provided with

a statement of one Mathias Strydom, a trip manager at Trip Travel, indicating that

the accused left Copenhagen on 26 November 1999 at 19h10 for Frankfurt and left

Frankfurt at 22h35 for Windhoek. The accused insisted that he arrived in Windhoek

on 25th November 1999. The accused was further confronted with the statement of

Strydom to the effect that the accused had visited the office of Trip Travel on 9

November to make certain payments and again on 10 November 1999 and not as

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the accused testified earlier that he visited the offices only once during November

1999. The accused agreed that the statement of Strydom was correct.

[636] The accused also agreed that he paid for accommodation at the Mercury

Hotel for seven nights. The accused explained that the statement of Strydom

referred to what had happened in 1999 and some years later in 2013 he was bound

to forget that he visited the offices twice and not once. The accused explained that

the white people who took him to the offices of Trip Travel paid for his expenses. The

accused denied that he attended meetings where secession was discussed and

denied that after 2 August 1999 he remained in contact with Mishake Muyongo who

was in Denmark. The accused testified that he could not deny that there was a plan

for a second attack, but denied that he was part of a group which planned a second

attack. The accused was confronted with his evidence-in-chief to the effect that he

and his children had no information about people going to Botswana. The accused

replied that is correct and that he only heard about it at end of October 1998 when

he was at Ngweze to receive his salary, when he was informed about Muyongo,

Mamili and Governor John Mabuku who had gone to Botswana. The witness

conceded that his reply previously that he did not hear about it was incorrect. The

accused explained that the reason why he did not mention the fact that he heard in

1998 about people going to Botswana was that he had forgotten about it.

[637] It was put to the witness that he made telephone calls to Denmark. The

accused replied that just because he applied for a telephone line does it mean that

he made the calls to Denmark. When asked why Michael Tubazumbe implicated him

the accused gave a long winded answer, asking instead why the witness had not

been arrested for going to Botswana. The accused eventually replied that he did not

know and that the police should know. The accused denied that he had informed the

police in his warning statement more what he knew about the issue of secession

than what he testified in court.

[638] The evidence presented by the State through the witness Mwisepi was that

the accused person was involved in the planning of a second attack in the Caprivi. I

have evaluated the testimony of Mwisepi who had testified against accused no 115

in respect of the same incident and had cautioned myself in accepting the testimony

of Mwisepi for the reasons mentioned. Mr Kachaka, in his heads of arguments,

refered to contradictions and exaggerations by Mwisepi as well as hearsay evidence.

I have indicated that the witness Mwisepi in respect of this incident was a single

225

witness and that I am not satisfied that it can be found that his evidence was

satisfactory in all material respects. As I have indicated hereinbefore, I shall not take

into account the evidence of Mwisepi in considering whether the State has

succeeded in discharging its burden of proof in respect of this accused. The

evidence of Sezuni only related to the allocation of a telephone line and that

telephone calls had been made to Botswana and to Denmark. The evidence did not

prove to which place in Denmark the telephone calls were made or who the recipient

of those telephone calls was.

[639] Michael Tubazumbe testified about two incidents. In the first, he narrated that

the accused person recruited him to assist with military training in Botswana because

of his experience as a soldier and that he eventually left for Botswana. This witness

is therefore an accomplice and his evidence must be approached with caution.

During cross-examination the witness conceded that in his statement no mention is

made of any conversation he had with the accused prior to his journey to Botswana

in November 1998. The witness conceded that he never informed the police that the

accused had influenced him to go to Dukwe. The reason why this alleged incident is

not reflected in his witness statement was not explained during re-examination.

[640] If this incident does not appear in his witness statement, which in my view is a

material omission, the question remains when did he remember about this incident.

There is also no answer to this question. The second incident relates to the year

2000 after the witness had returned from Botswana when the accused allegedly

expressed his disappointment with his return and insulted another person as being a

coward. This person (who had been insulted) was indicated as the brother of the

accused person namely ‘Federus Manyemo’. The witness claimed that they

attended the same school. This witness conceded that this name does not appear in

his first statement but that the name ‘Muyakuyi’ appears in the second statement.

The name ‘Federus Manyemo’ does not appear in the second statement. It was put

to the witness that the accused denies having a younger brother and the accused

himself was the last born. Federus Manyemo did not testify. he accused denied

having such a confrontation with the witness.

[641] Hamlet Muzwaki also testified about two incidents. During the first, the

accused had informed him during December 1998 to liberate the Caprivi Region. It

was put to this witness during cross-examination that the accused never had such a

conversation with him. In respect of the second incident and the nocturnal visitors,

226

this witness conceded during cross-examination that he did not inform the police in

his statement of having seen any big gun, and conceded that he told the police that

the white people came to look for curios.

[642] The explanation by this witness during re-examination that he recalled the big

gun shortly before he was due to testify is highly unlikely and implausible since this

witness testified on 7 February 2006 more than 7 years after those alleged incidents.

The same explanation is given for his testimony that the two white men visited the

courtyard of the accused for a second time, namely, that before he gave his

testimony he recalled that incident. If it is accepted for the sake of argument that

John Samboma and two white men indeed visited the accused, then the inference

that they were for an innocuous purpose cannot be excluded as conceded by the

witness although it appears from the re-examination that according to this witness

that it was the accused who had mentioned that the white men came looking for

curios and that this was just a ruse. This witness also contradicted himself by first

denying the existence of a shop and later conceded that there was such a shop.The

testimony of the accused can be described as being pregnant with suspicion.

[643] The journey of the accused to Denmark is clouded in secrecy. The accused

does not know the name(s) of the place or places where they went in connection

with the projects and the identities of his beneficiaries are unknown. It is also

unknown to which Government Ministry these white people had been attached to. In

my view from normal human experience it is highly unlikely that a person like the

accused who was unemployed at that stage, not to have enquired any detail of these

white persons, person who paid for all his expenses in respect of his airfare and

accommodation in Denmark. The accused admitted during cross-examination that

he provided incorrect information on his visa application form when he stated that he

was a pensioner when he was in fact unemployed at that stage.

[644] The argument by Mr Kachaka that the word which appears on the application

form is a different word is of no consequence since the word on the visa application

form very closely resembles the word ‘pensioner’. In any event it is a case of

splitting hairs since the accused had admitted during cross-examination that the

word pensioner appears on the visa application form. The dispute about the exact

date the accused had arrived at Hosea Kutako airport is immaterial in the

determination of his credibility as a witness. It was never disputed that he returned

from Denmark during November 1998. Similarly is the contention that the accused

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first referred to an old white man and a woman and later to two white men and still

later in the record to white persons. This apparent contradiction is of no

consequence. The denial by the accused that he does not know who made

telephone calls from his telephone to Denmark is highly unlikely and raises a

suspicion, especially in view of his journey to Denmark, that he went to visit

Muyongo. The accused was an evasive and argumentative witness.

[645] In spite of aforementioned suspicion, the question remains whether there is

any evidence that the accused came into personal contact with Muyongo whilst in

Denmark, and if so, the implications of such contact. Although it was put to him

during cross-examination by Mr July that he went to visit Muyongo there is no

evidence to support it and it remains a suspicion. In the determination of whether the

commission of an offence had been proved beyond reasonable doubt a court must

have regard to the evidence by the State as well as what was presented by an

accused. I have referred to the weakness of the testimonies of the respective State

witnesses and am of the view that in spite of the fact that the evidence of the

accused is not above criticism that it cannot be rejected as false. There thus

remains a doubt whether it was proved beyond reasonable doubt that the accused

committed the offences preferred against him, and he must be given the benefit of

such doubt.

Rodwell Sihela Mwanabwe (accused no. 30)

[646] Duscan Simasiku Nyoka testified that he resides in Muambezi village in the

Gungwe area and that he went to Botswana during the year 1998. He went there

because Chris Muchanana, Progress Munana and progress Mubonda told them that

those individuals who had failed Grade 7 could go to Botswana for ‘some studies’.

This was said at the school. The witness testified about an incident after the attack

on 2 August 1999 where he was questioned by the police at his village about the fact

that he had been to Dukwe. The police apprehended him and he was in the

company of three other person when they drove in the direction of the town but on

their way they he saw vehicles rushing to the village of Rodwell Sihela, namely,

Nyandayanda. He saw the police collecting Rodwell Sihela from the courtyard of his

mother and observed black ‘cloths’ tied behind the head of Rodwell Sihela. When

Rodwell Sihela was brought closer to where they were standing he observed some

black powder on his ears, and also observed a bangle with ‘charms’ around it on his

228

wrist and a string hanging from his neck. At that stage Sihela was blindfolded and

was kicked by the police, the cloth came off and he observed black powder on the

temples of his head, on his ears and on the sides of his eyes. The witness was

asked about black marks he had observed on another person (Gilbert Poshowe) and

how those marks looked to him and the witness replied:

‘My Lord for me personally, I didn’t have that time or concentration to determine what

these black powder marks were because of the shock that was in me and also on top

of the shock very much also that they made on me that’s why I was not able to

determine and concentrate what these black powder marks were’.

[647] The witness testified that the black powder marks appeared to be the same.144

The witness testified that they were then all loaded including Rodwell Sihela and the

vehicle started to move. The witness testified when they approached a school he

was released by the police. His friend Lasken was also released. This accurred

during the morning of 10 August 1999 after sunrise. The witness testified that he

knew Rodwell Sihela from 1992 and they attended school at Ngungwe. This witness

identified Rodwell Sihela as accused no. 30 in court. During cross-examination the

witness testified that two police officers kicked the accused on his chest. During

cross-examination it was pointed out that the witness did not in any one of his four

statements he had deposed to mentioned about black marks on Gilbert Poshove.

The witness explained that he told the police about the black marks when his first

statement was taken and he had taken it for granted that it was recorded in the first

statement. It was put to the witness that the accused doesn’t know anything about a

wristband or black marks. The witness disagreed.

[648] It was put to the witness that prior to the witness observing the accused he

had already been kicked many times by the police. The witness agreed adding that

the accused was also hit on his back with the butts of guns. Mr Kachaka in his heads

of argument submitted that this witness had conceded that the black marks could

have been polish from the boots of the police. I was however unable to locate that

concession in the record. Lasken Munalula Sikosi testified but failed to identify the

accused because of an ‘eyesight’ problem. George Aluteya Sizuka’s testimony was

already dealt with. He identified Rodwell Sihela as accused no. 30. John Libuka also

testified and his testimony was already dealt with.

144 P. 7995.

229

[649] Chrispin Mandoile Mandoile testified that he left for Botswana after two

persons namely, Danbar Mushwena and Francis Liemo Mubita had spoken to him

on two separate occasions during 1998 about going to Botswana in connection with

the secession of the Caprivi region. Transport was arranged by Danbar Mushwena

and he boarded a motor vehicle at Shell Filling Station driven by one Gasper

Mashana who off-loaded them at Masokotwani. He was in a group of 16 individuals.

His nephew Rodwell Sihela was also in this group. They proceeded on foot from

Masokotwani until they reached the field of Mr Kasungo where they found other

individuals and the members of the group increased to 36 individuals. They

proceeded to Baragorongo and from there to Kasani. From Kasani they were

transported to Dukwe where they arrived on 17th November 1998. On 24 June 1999

he returned to Namibia through repatriation. Individuals who formed part of the group

of sixteen who returned with him were Rodwell Sihela, Johnny Libula and George

Sizuka. On 2 August 1999 he heard the sounds of gunshots coming from the

direction of the town around 06h00. This time he saw Rodwell Sihela running and he

asked him: ‘Why are you running?’ Sihela replied: Why, I am running, I am also

seeing people who are busy running and I can even hear gunshots. That is why I

am also running, coming to you house . .’ The witness testified that thereafter he did

not ask further questions and did not see Rodwell Sihela carrying anything at that

stage. According to this witness he told Sihela:

‘If that’s the situation or if that is the case, you can proceed, go to your elder sister,

Ida.’

[650] The witness testified that Sihela looked like someone in fear. This witness

identified Rodwell Sihela in court as accused no. 30. The witness was not cross-

examined by counsel who appeared on behalf of accused no. 30.

[651] The accused testified that he was arrested on 10 August 1999 in the morning

at his mother’s courtyard. On that morning between 05h00 and 06h00 he was

awoken by police officers who blindfolded him and told him to sit down. He was

thereafter kicked and hit with the butt of a firearm. He was then loaded onto a

vehicle. There were three police vehicles. On the way to the police station he was

again assaulted. At the police station he was put in a room in which there were

corpses. From the police station he was taken to Mpaha Military Base. At Mpacha

he boarded an aeroplane and was flown to Grootfontein where he was kept from the

10th to 23rd of August 1999 when he appeared in Court.

230

[652] The accused denied that there was black powder on his body on 10 August

1999. The accused denied that he told George Sizuka that they should ‘join our

friends’, or that he had told him that they should go to Ngweze to look for piece work.

The accused testified that George Sizuka is his brother (actually cousin). The

accused was referred to the testimony of Sizuka regarding the alleged conversation

referred to (supra) and was reminded that Sizuka had testified that his younger

brother John Libuka was also present at that stage. The accused agreed that they

were together.145 The accused stated146: ‘I will answer it like that these people they

were two My Lord as I indicated that John was with Alufeya. Let us start about the

testimony of John Lubuka.’ The accused was then reminded by counsel Mr Kachaka

that as a witness he was not there to analyse the evidence of a state witness and to

point to contradictions. When the accused was asked the same question he replied:

‘Me and my friend were not there’.

[653] The accused was referred to the testimony of George Alufeya Sizuka where

he testified about a second occasion where Sizuka had testified in his evidence-in-

chief: ‘The second trip when they came let us go and join our friends so that we cut

the region.’ The accused stated: ‘We did not utter those words . . .’

[654] The accused was referred to the testimony of John Libuku147 who testified: ‘It

is something like we were going to fight at the police station but the fight did not take

a long time because they were few and ran away from there.’ This was apparently

said when they were on their way to a football field to play football. The accused

replied that he did not see the witness (John Libuku) and that he did not go with him

to play soccer and did not tell him about a fight at the police station. The accused

was referred to the testimony of Chrispin Mandoile. The accused denied that he met

his uncle on 2 August 1999 because he (i.e. accused) was at the village in the

Gunkwe area. The accused was asked why his uncle and cousins would testify as

they did and the accused replied:148

‘Chrispin Mandoile is my uncle. We did not have differences with him. There is no

time that I had differences with him. I will not be in a better position to know why

should he come and start telling such kinds of stories in court. Maybe it is the police

officer, who told him that they will give him money to come and testify on my behalf.’

145 P. 37727-37728146 P. 37728147 At p. 19331 lines 47148 P 37730 lines 20-26

231

[655] The accused replied as follows in respect of John Libuku:149

‘John Libuku is also my brother. Me who is standing here I will not know the reason

that brought him to come here. The reason is just known by the police officers who

brought them here who were paying them money. The same also applies to Alufeya

Sizuka George he was also my brother. We were living nicely together at the village

and we did not have any problem. I did not have a problem with him. I will not know

the reasons why he came here and start fabricating such kind of stories it will just be

known by the police officers.’

[656] The accused person showed scars on his body to the Court and testified that

those scars were as a result of the assaults perpetrated on him. The accused

testified that photos had been taken by someone from LAC of those scars and that

his claim against the Government was settled ‘outside Court’. During cross-

examination, the accused testified that he left Namibia on 13 November 1999 and

that he arrived in Botswana on 14 November 1999; that he was very sure about this

date; that he went alone to Botswana, all by himself; that he did not go to a specific

place in Botswana, but went there because he heard there was free education; that

he was born on 15 July 1972; that he went to Dukwe; that he did not have a

passport; that he did not have a student permit; that he took along his standard 5

certificate; that he did not cross the border at a designated border post; that he heard

about the issue of secession for the first time during September, November 1998

over the radio; that people were fleeing to Botswana; that he heard over the radio the

death of Falali; that he heard over the radio that those responsible for the death of

Falali were arrested and brought to Windhoek Prison; that he did not hear over the

radio that the CLA or Muyongo’s army was responsible for the death of Falali; that he

did not know why people were fleeing to Botswana following Muyongo; that people

fled with weapons of war; that the stayed 8-9 months in Botswana; that he knows

Adour Chika Mutalife who was in Botswana; that Adour Mutalife did not tell him why

he was in Botswana but saw him ‘registering for education’, that he, himself, did not

tell Adour why he was in Botswana; that Minister Jerry Ekandjo came and addressed

the Caprivians in Dukwe.

[657] The accused was asked why he had vehemently refused an order by the

court orderly to sit on a chair in the passage during an adjournment, and the accused

replied that no reason was provided for such an order. When asked whom did he

149 P 37731 lines 6-16

232

speak to during the adjournment the accused stated that he did not speak his co-

accused that he spoke to a member of the media; that he had heard about free

education from his friends Diaz and Tieho who in turn also heard about it; that he did

not ask them whether they received free education in Botswana; at that stage he

was in the village and unemployed; that he had the conversation with his friends only

one; that he had no idea where in Botswana he would find education; that he

returned because the Minister asked them to return; and that he did not ask the

Minister about free education.

[658] The accused disagreed that he came back through repatriation in order to

continue to fight for the secession of Caprivi. The accused denied that he collected

people at the village and took them to Makanga prior to the attack on 2 August 1998.

The accused denied that he went through rituals at Makanga in order to make him

invisible in preparation for the attack and, denied that he participated in the attack,

he testified that he was at home at Gunkwe on 2 August 1999; that Gunkwe is

approximately 40-45 km from Katima Mulilo; and that at Gukwe one would not be

able to hear gunshots in Katima Mulilo. The prosecutor reminded the accused that it

was not put to any of the sate witness (that the accused was at Gunkwe on 2 August

1999) to which the accused replied that it was the decision of his legal

representative.

[659] The accused was informed that he had effectively raised an alibi defence.

The accused gave an answer which made no sense. The accused was reminded

that he did not testify in his evidence-in-chief that he was at his village on 2 August

1999 to which the accused replied: ‘I said I was at Gunkwe and that is where I was

arrested’. The accused conceded that he had earlier testified that he was together

with Adour Chika Mutalife when they were arrested on 2 August 1999 but that it was

a mistake as he was arrested on 10 August 1999. The accused denied that he was

together with Adour Chika Mutalife on 2 August 1999.

[660] The accused denied that he ran away from the attack and that he went home,

adding that he was at his village. The accused testified that Adour Chika Mutalife is

his brother150 in the ‘cultural sense’. The accused corrected himself by saying that he

went to Botswana in the year 1998, and not in the year 1999. The accused testified

that his nickname is ‘Squeeze’. The accused testified that Adour Mutalife was

150 P. 37781 lines 17-34.

233

arrested together with him at Nyandayanda village in Gunkwe area on 10 November

1999.

[661] Mr Kachaka submitted that under cross-examination the testimony of John

Libuku was full of contradictions and refered to the following: That the witness

admitted under cross-examination that he told police officer Chizabulyo that when

the accused was arrested, the accused confirmed to the police who had arrested him

that he was coming from Ngwezi and that he was there fighting, but when confronted

with this the witness testified that when the accused was arrested he (i.e. the

witness) was not so close and did not hear anything at all when the accused was

talking to the police.

[662] I must state that counsel is perfectly entitled to question the testimony of the

witness in order to point out a contradiction, since this was indeed a contradiction.

However, it must be emphasised that whatever was said by the accused to the

police officers who arrested him, in view of the circumstances under which he had

been arrested, amounts to an inadmissible confession, and the State cannot, as it

appears to me from their heads of argument, rely on such communication as support

for their argument that the accused had committed the crime of high treason.

[663] Mr Kachaka pointed to another contradiction where the witness John Libuku

was reminded of his evidence-in-chief that he was with George Sizuka when he was

approached by the accused and Adour Mutalife, but that in his statement to the

police he stated that when the accused and Adour Mutalife had left, he called

George Sizuka and informed him about the discussion he had with the accused and

Adour Mutalife. Another example highlighted was what appeared from the record 151

where he was asked whether he had talked to George Sizuka what his uncle

(Mandoile) had said about going to Botswana and was asked:

‘Did you not tell George that there are work opportunities in Botswana, let’s go? You

didn’t say that? . . . No. I did not tell him that’.

[664] When asked what his answer would be if George Sizuka said that he told him

about job opportunities in Botswana the witness replied152:

‘Him if he knows that I did not tell him that, he’s not going to testify concerning that’.

151 P. 19356 lines 10-12.152 P. 19356 lines 19-20

234

[665] Counsel in his heads of argument (page 13) referred to the record153 where

this witness in response to what is quoted: ‘You say you didn’t say that?’ replied: ‘I

would say he would be telling lies’. I scrutinised the record but could find no such

reply on the page referred to by counsel. What appears from the record154 during the

cross-examination of George Sizuka when he was asked what he (i.e. Sizuka) would

say if John Libuku tells the Court that he (Libuka) did not say anything to him

(Sizuka) about going to Botswana for work, Sizuka replied: ‘I would say he would be

telling lies’. Mr Kachaka also referred to a reply by the witness Sizuka as to when

the accused had talked to him about cutting Caprivi, referred to the year 2002 more

than two years after the arrest of the accused. My observation in this regard is the

same when I discussed the same point raised by accused no. 2. Counsel did not

submit that this court should reject the evidence of George Sizuka as false or

unreliable and there is no cogent reason for this Court to do so.

[666] To return to the testimony of John Libuku, his testimony regarding the journey

to Botswana corroborates the testimony of witness Mandiole. Libuku testified that he

went to Botswana because there were suppose to be military lessons. I must say

that his evidence on this point is hearsay. However Libuku testified that he travelled

together with Mandiole, that the group consisted of 16 individuals who boarded a

vehicle at a filling station, that he did not know the other persons in the group except

his uncle Chrispin Mandiole and Richard Sihela, that the driver of the vehicle was

one Gasper Machana, that from Masokotwane they walked until they reached certain

fields and came to a place called Parakalunga.

[667] Much was made by counsel that the witness testified about two different filling

stations, Engen and Shell. I am however not persuaded that the testimony of Libuku

on this point should be disbelieved. Mandiole testified that they boarded a vehicle at

Shell Filling Station and his evidence was not disputed on this point. It should

however be emphasised that Libuku’s testimony corroborates the testimony of

Mandiole that the accused was part of a group which left Botswana and that he was

not alone. The accused could give no plausible reason why these two witnesses

would fabricate their testimonies against him. Mr Kachaka in his heads of argument,

correctly submits, that it was the submission by the State that the evidence of

Chrispin Mandiole was challenged. Counsel however submitted that the accused did

so during his defence. In making this submission counsel appears to be ignoring, 153 P. 19356 lines 10-12154 P. 19476 lines 17-20

235

conveniently so, one of the aims of cross-examination alluded to in this judgment. I

wish to refer to S v Boesak155 where the Constitutional Court referred to President of

the Republic of South Africa and Others v South African Rugby Football Union and

Others156 and where the following appears:

‘[a]s a general rule it is essential, when it is intended to suggest that a witness is not

speaking the truth on a particular point, to direct the witness’s attention to the fact by

questions put in cross-examination showing that the imputation is intended to made

and to afford the witness an opportunity, while still in the witness-box, of giving any

explanation open to the witness and of defending his or her character’.

Langa DP continues at para [27] as follows:

‘The SCA held that this rule applies to the challenging of all evidence adduced by the

other party, whether on the basis of hearsay, inadmissibility, lack of proof of

authenticity, or accuracy.’

See also S v Katama157.

[668] Failure to cross-examine may therefore prevent a party from later disputing

the truth of the witness’s evidence. The testimony of Mandiole stands

uncontroverted. In addition to his narration of their journey to Botswana this witness

also testified about an incident on 2 August 1999 when he asked the accused why

he was running and the accused informed him about gunshots and other people who

were also running. The defence of the accused, just like the defence of accused no.

9, is an alibi. His testimony was that on the day of the attack he was at his village,

40-45 km from Katima Mulilo and that he did not participate in the attack. The

accused never gave a plea explanation, his defence was never put to the witnesses

during cross-examination (in particular to Chripsin Mandiole), and he first raised his

defence during his evidence-in-chief.

[669] I must accept the evidence of Mandiole (in the absence of any challenge

thereto) that the accused replied to a question that he was running because of

gunshots. The accused conceded that one would not be able to hear gunshots in his

village if gunshots were fired in Katima Mulilo. The evidence of the accused that he

was at his village on 2 August 1999 must be rejected as false. I need further to refer

to the authorities referred to in my evaluation of the evidence against accused no. 9. 155 2001 (1) SACR 1 (CC) at p 12. Para [26]156 2000 (1) SA (CC) at para [61]157 2000 (1) SACR 162 (NMS) at 183h

236

The same is applicable in respect of his accused. Further support that the accused

was an untruthful witness is to be found when he contradicted himself during this

testimony. His testimony is that he went to Botswana alone. However during cross-

examination the accused was asked where he had heard about education in

Botswana and he mentioned the names of his friends Tieho and Daiz. The record

reflects the following158:

‘They told me that they heard that in Botswana there is fire education that is why

people were fleeing there. That is why I went there with them. They are even still there.’

(Emphasis provided)

[670] This Court also accepts the evidence of Geroge Sizuka (in the absence of any

serious dispute) to the effect that the accused tried to recruit him to participate in the

attempt to secede the Caprivi Region. I am satisfied that the evidence presented by

the State proves beyond reasonable doubt that the accused was one of the

conspirators in an attempt to secede the Caprivi Region from Namibia by violent

means, that he participated in the attack and thus had the required hostile intent.

Kester Silemu Kambunga (accused no. 102)

[671] Progress Lifasi Mibonda testified about an incident during the year 1998 whilst

he was at his village Batubatja. Chris Mushana and Cesta Kuvunga approached him

in connection with a group of people who needed to cross into Botswana. Chris

Muchana spoke to him. It was during the evening and there were nineteen people in

this group. This group was supposed to cross into Botswana at Situnga. The witness

testified that he accompanied the group to his friend Manja who lived near Situnga.

Late in the evening the group the group crossed a tributary into Botswana. He,

himself, Manja, Cesta and Chris returned. The witness testified that the vehicle

driven by Kester Kambunga was a yellow Hilux. The witness testified that he knew

Kester Kambunga, as teacher at Makanga. The witness witness identified Kester

Kambunga as accused no 102 in court. The witness testified that he did not know

who the owner was of the vehicle driven by the accused. The witness testified that

he did not go to Botswana. The witness was not cross-examined by any counsel.

158 P. 37765 lines 30-30 and p. 37766 line 1

237

[672] Bernard Kanzeta testified that he was an officer in the DTA and that he was

fetched from his house in Ngwezi by Kester Kambunga and Mathews Mutambo in

order to attend a meeting during November 1998. He was off loaded at the meeting

but these two individuals were not at the meeting at the DTA office. The witness

Kanzeka testified about another incident where Kester Kambunga came to him in the

Ngonga are around 22h00 and informed him that he had brought people who wanted

to go to Botswana. The witness testified that he demanded payment and Kester

Kambunga have him N$ 150.00. The witness described the vehicle driven by Kester

Kambunga as a Toyota Hilux yellow in colour with registration number N 678 KM. He

testified that he took the group to the banks of the Kwando river and showed them

where to cross. The river was shallow and they could walk, crossing the river. The

witness testified that when he returned from the river he found that Kester

Kambunga was gone. The witness testified that there were thirty people in that

group.

[673] Kanzeka testified about a second occasion when Kester Kambunga

requested transport and help, and this time he had five people. The witness testified

that he was not paid but that he helped because of the payment he had received on

the first occasion. He testified that he did not take those five people to the banks of

the river but just showed them the direction to take. The witness testified that he

never saw Kester Kambunga again from that day. The witness identified Kester

Kambunga as accused 102 in court. During cross-examination by Ms Sithole-

Mwenda, the witness was referred to his witness statement in which he had stated

that Geoffrey Mwilima had sent a driver to fetch him to attend the meeting. The

witness retorted that there is no difference between his statement and his testimony

in court. It was put to Kanzeta that the accused denies ever having brought any

person to him to assist in their transportation to Botswana and denies paying him the

amount of N$ 150.00. The witness disagreed. It was put to the witness that the

accused never picked him up for a meeting at the DTA offices. The witness denied

this.

[674] Progress Munsu Mulonga testified about a meeting held in 1998 at the DTA

offices and where the issue of secession was discussed. He testified that one of the

attendants was Kester Kambunga. This witness identified Kester Kambunga as

accused 102 in court and testified that prior to the meeting, he had known Kester

238

Kambunga as a teacher. During cross-examination by Mr Nyoni, the witness testified

that he was a born half deaf. During cross examination by Ms Sithole-Mwenda it was

put to the witness that the accused did not attend any meeting at the DTA offices

with him in 1998 where the issue of seceding the Caprivi from the rest of Namibia

was discussed. The witness replied that he saw the accused at that meeting.

[675] Jeremiah Masule Kanchele testified that during the year 1998 he was the

Induna at Mototela village. He testified that Kester Kambunga is his young cousin.

The witness testified about an incident where his son had made a report to him and

that as a result of this report, he confronted Kester Kambunga and that he told

Kester Kambunga that he should stop telling the ‘kids’ that he would arrange work for

them in Botswana. He testified that when he said this, Kester Kambunga did not

respond, that he just looked at the witness and left. He testified that Kester

Kambunga hails from Makanga area. This witness identified Kester Kambunga as

accused no 102 in court. During cross-examination by Ms Sithole-Mwenda, it was

put to the witness that the accused had a discussion with him, in his capacity as a

member of the family but that the accused never had any discussions with him in

respect of the topic he had testified about. The witness responded by stating that he

indeed had such a discussion with the accused person.

[676] Mukushi Events Kaine was warned in terms of s 204 of Act 51 of 1977. This

witness testified that on 1 August 1999 he was at Kashishi village at a traditional

dance and was waiting for his girlfriend so they could return to his village Masida.

Whilst he was waiting at a T-junction some distance away, he was confronted by

three armed men. Two of the men he recognised as Kenneth Samulandela and

Thadeus Muzamai. They wanted to know why he was there at the village if he had

been to Dukwe. He was subsequently escorted until they came to crop fields where

he observed three motorvehicles parked alongside the road near Makanga. These

vehicles were all Hilux bakkies, one white in colour, one yellow in colour and one

white in colour with green stripes. He identified the vehicles as belonging to Jimmy

Liswaniso, Kester Kambunga and Martin Chainda. The witness testified that the

vehicles were known to him because he used to travel in these vehicles whenever

they journeyed to Katima Mulilo as passangers. The witness then narrated how they

were subsequently joined by a group of approximately fifty men. He boarded the

vehicle belonging to Jimmy Liswaniso and they travelled until they reached Waya-

239

Waya where they disembarked and walked to Liselo where he again got onto the

vehicle of Jimmy Liswaniso and went near the NBC in Katima Mulilo where they

disembarked. This witness was not cross-examined by Ms Sithole-Mwenda who

represented the accused at that stage.

[677] Walters Mwezi Sikochi was warned in terms of s 204 of Act 51 of 1977. This

witness testified about an incident on the evening of 1st August 1999 at Makanga

where a group of persons were addressed by Shadrick Chainda who said: ‘ today is

the last day and what will happen is we will fight against the force members of the

Namibian police, Namibian Defence Force’. At midnight they were told to move out

to where about 10 motorvehicles were parked. He recognised two motorvehicles.

One was a yellow car belonging to Kester Kambunga, and the other was a GRN

Tata truck. According to this witness Kester Kambunga was not present. During

cross examination by Ms Sithole-Mwenda the witness conceded that he recognised

a yellow Toyota Hilux Bakkie, that he did not see the driver of that vehicle, and did

not know the registration number of this vehicle.

[678] A number of witnesses were called but failed to identify the person they

referred to in their testimonies as Kester Kabunga.

[679] The accused testified that he was arrested on 23rd August 1999 at his home in

Makanga, in the Caprivi region and taken to the police cells at Katima Mulilo. The

next morning he was taken for interrogation and was assaulted by police officers. He

testified that he laid a complaint at LAC who was persuing that claim. The accused

testified that he did not know the witness Progress Mibonda and only saw him in

court; that he had never taken anybody to Mibonda; that when the witness testified

that the witness spoke to Chris Muchanana (which he could not exclude to be the

case) but that he was not there, that he was not part of that group; that he does not

know who Muchanana is; that he, ie himself, was a teacher at Makanga. When the

accused was referred to the evidence of Progress Mibonda that he was driving a

yellow motorvehicle, the accused responded by saying that he had a yellow vehicle

and stated: ‘He could not know whose bakkie it was but the bakkie was mine. I had a

yellow bakkie yes!’. The witness then in reply to the follow up question stated that

there were many yelloy bakkies in the region so what the witness had seen might not

have been his bakkie.

240

[680] The accused testified that he did not collect the witness Kanzeka and did not

even know where the house of the witness was. The accused denied that he took

people to the witness at Ngonga area and that he had ever been in that area. He

denied that he paid N$ 150.00 to the witness. The accused was referred to the

testimony of Kanzeka that the motorvehicle the accused was driving was a Toyota

Hilux 1800 yellow in colour with registration number N 678 KM. The accused

admitted that the motorvehicle was his and stated further that it would not have been

difficult for Kanzela to know the registration number because Kanzeka worked as a

petrol attendant at the filling station. The accused was referred to the testimony of

Kanzeka that on another occasion the accused brought a group of five persons to

him. The accused replied that he had never ever taken people to the witness. The

accused denied that he ever attended a meeting at the DTA office in 1998 as

testified by Progress Mulonga. The accused testified that he had never worked at the

DTA offices.

[681] The accused admitted that Jeremiah Kanchele is his counsin but denied that

he had ever spoken to Kanchele’s son about going to Botswana. He testified that he

used to discuss family matters with Kanchele. The accused denied that Kanchele

had confronted him and had told him not to tell Kanchele’s son about going to

Botswana. The accused stated, in respect of the four witnesses who pointed him out

and who testified against him that there was nothing else they could have done

because they were followed by the police and found themselves in the hands of the

police. This was however not put to one of these witnesses during cross-

examination. During cross examination by Mr July, the accused testified that there

were no ill-feelings between himself and the witness Kanchele; that he could not

remember the conversations with Kanchele but could recall conversations in

connection with family matters. In respect of the DTA meeting, the accused

concedes that he said in evidence-in-chief that he could not remember that meeting

and that was something different from denying that he attended such a meeting. It

was put to the accused that he was changing his testimony from what he had

testified in-chief and the accused agreed.159 The accused testified that he did not

know the witness Progress Mulonga and that he saw him for the first time when he

gave his testimony.

159 P 38208, line 32.

241

[682] The accused conceded that he might have given the witness a lift to the

meeting and that he cannot dispute the evidence of the witness on that point. When

asked why the witness would have testified about receiving N$ 150.00 from the

accused, the accused speculated that the police could have influenced or threatened

the witness. When asked whether he had ever lend his vehicle to someone else, the

accused replied that it was possible that he could have lent his vehicle to one of his

colleques or to his brother or other family members. The accused conceded that he

did not testify about this during his testimony-in-chief. The accused was referred to

the fact that during the cross-examination of the State witnesses, it was not put to

them that he had lend his vehicle to a coleque or to a relative. The accused replied

that he gave such instructions. The accused conceded that he never told the police

that he had lend his vehicle with registration number N 678 KM to a colleque or a

relative and further conceded that he made no reference to his motorvehicle in his

plea explanation. I must state that there was no plea explanation. It must be stated

that the accused pleaded not guilty and gave no plea explanation.

[683] The accused testified that he was a member of the DTA, an inactive member

up to the time of his arrest, that he was not a registered member but a party

supporter. The accused testified that there was a DTA branch at Makanga. He also

testified that he came to hear about the UDP in 1998 ‘when it was being said it has

disaffiliated itself from the DTA’. It was pointed out to the accused that the evidence

presented shows tthat he was a recruiter of persons to go to Botswana in order to

fight for the secession of Caprivi from Namibia. The accused denied that he ever

recruited anyone for the purposes of secceding the Caprivi Region. It was further

pointed out that there is testimony that he supported the rebels who gathered at

Makanga bush and provided them with transport to Waya-Waya in order to

commence the attacks in the Caprivi on 2nd August 1999. The accused replied that

not one of the four witnesses who had testified in court testified to that effect. The

accused confirmed that evidence was presented in court that his vehicle transported

people from Makanga bush to various places in preparation for the attacks on 2 nd

August 1999.160 When asked whom of the accused persons he had known prior to

his arrest, the accused mentioned Mr Mucheka, Gabriel Ntelamo, Leornard Ntelamo,

Geoffrey Mwilima and Richard Mundia.

160 P 38218, lines 20-23.

242

[684] The accused was referred to the testimony of Mukushi Events Kaine that his

motorvehicle was seen on the night of 1st August 1999 at Makanga. The accused

replied that he did not know Events Kaine and stated that his vehicle was with him at

home. The accused was reminded that counsel did not put it to the witness Kaine

that the yellow Toyota Hikux Bakkie was with the accused on the night of 1st August

1999. The accused agreed that that was not put by counsel to the witness, but that

he gave such instructions. The accused agreed that his vehicle could not have been

at two places at the same time. The accused testified that he became aware during

1998 that there was an exodus of people to Botswana. This was announced over the

radio. He however did not know the reason for such exodus. The accused testified

that he only came to hear about secession when witnesses testified in court.

[685] The accused agreed that in his position as principal of a school, if he had

knowledge of treasonous activities taking place that he had a responsibility to inform

the Namibian authorities about it and knew that not to do so constitutes a criminal

offence. The accused denied that he had any prior knowledge of the attacks on 2 nd

August 1999. The accused was confronted why his counsel had, during cross-

examination of the witness Borniface Libanda, put it to the witness that people were

going to Botswana because of information circulating, whilst the accused had

testified that he did not know why people were leaving for Botswana.

[686] The accused replied that he does not think that he woudld have given such

instructions to counsel. The accused was referred to the testimony of Borniface

Libanda who had testified that at a meeting, one Kester Kabunga pointed out two

things, namely, that those in attendance should assist and must learn to help those

who wanted to go to Bostwana. The accused agreed that was the testimony of the

witness, but that the witness did not refer to him. The accused was referred to the

testimony of this same witness who testified that those present at the meeting

agreed to assist those 30 people and donated N$ 150.00. The accused replied that

he heard that testimony and that the witness was not referring to him. The accused

was refered to the testimony of the same witness who testified that those 30

individuals were taken with four cars, after the meeting chaired by Kester Kabunga,

to Ngonga. The accused replied that he recalled such evidence.

243

[687] The accused was referred to the evidence of Berhard Kanzeka who testified

that Kester Kabunga (whom he had identified as the accused) came to Ngonga

requesting him to assist to take persons to Botswana. The accused replied that he

recalled that evidence. The accused was asked whether he recalled the evidence of

Kanzeka that Kester Kabunga gave him N$ 150.00 for assisting to take those people

to Botswana. The accused replied that he heard the evidence. The accused was

asked whether he still mantained that the Kester Kabunga referred to by Boniface

Libanda is a different Kester Kabunga that gave the N$ 150.00 to Bernard Kanzeka?

The accused replied that he is not the Kester Kabunga, Libanda had referred to. The

accused testified that he knew Borniface Libanda prior to his arrest, as his cousin.

[688] The accused was referred to Exhibit EGO1 at p 21 (a translation from Silozi)

where Brian Mboozi stated what occurred on 10 December 1998 namely:

‘I paid an amount of N$ 100.00 to join Liyonga in order to proceed to Lizaule. I went

with three people. Their names are as follows: Myself, George Ndugati from Masida village

with his wife and Tupelo Calicius. The people who were responsible for our crossing were

Kester Kabunga who I paid N$ 100.00, John Liyonga who asked me in the presence of Mr

Kabunga that if I go to Botswana being a spy the NDF will kill me because they do not want

spying in relation to the case of Muyongo’

[689] The accused replied that he does not know about the encounter on 10

December 1998. The accused was asked whether he had known John Samboma

prior to his arrest and the accused answered in the affirmative. When asked why his

name was not mentioned amonst those accused persons before Court whom the

accused had known, the accused stated that John Samboma was not someone he

used to be with. The accused, when asked, stated that he was not aware of any

other Kester Kabunga who was a principal at a school who drove a yellow Toyota

Hilux bakkie with registration umber N678KM.

[690] Mr Kachaka questioned, when the accused was confronted with the evidence

of the witness Borniface Libanda (who was on application by the State declared a

hostile witness), whether the State could rely on the testimony of such a witness in

order to prove its case against the accused person. As indicated (supra), the

accused confirmed the testimony of Libonga as put to him by Mr July. The

application to declare the witness Libonga a hostile witness, was brought during the

244

re-examination by Mr January. The reason why such an application was brought,

was because the witness, during cross-examination by defence counsel, in particular

the cross-examination by Mr Samukange, testified that his evidence-in-chief is a true

reflection of one of his statements, but that the contents of his statement itself is

false, because the statement reflects what Sgt. Evans Simasiku had told him, and

did not come from the witness himself. He testified that due to the particular

circumstances under which the statement had been obtained, namely, duress, he

had no option but to sign the statement. The witness testified that he deposed to four

witness statements.

[691] The application was successful and Mr January cross-examined the State

witness which cross-examination was limited to the consideration whether or not

what is contained in the statement was false and was prescribed to him by the

police. The witness was extensively cross-examined and it is not necessary for me to

go into much detail regarding the replies of the witness during such questioning,

save to state the following: the witness gave his testimony in chief on a Thursday

and (for reasons which are irrelevant) was cross examined only on the next Monday

morning; during the entervening week-end the witness attended a gathering of family

members in Windhoek; no-one according to the witness enquired why he was in

Windhoek and he informed no-one whey he was here, coming from the Caprivi

region; that the method employed by Sgt. Simasiku in obtaining his statement was

by asking questions and the witness providing the answers and in this way sgt.

Simasiku compiled what the witness refered to as a ‘comprehension’. The witness

thereafter signed this statement; the witness was informed by the prosecutor during

consultations to testify the truth and that he should feel free to testify; that the

witness was sworn in and reminded by the court to tell the truth; that the witness did

not tell the truth during his testimony in chief because the witness waited to be given

the ‘option’ by the court to tell his story from the bottom of his heart; that he at no

stage during his testimony-in-chief gave any indication that he was being untruthful;

that he would not have revealed his testimony as an untruth had he not been

questioned by Mr Samukange about people fleeing to Botswana because of

assaults, intimidation and torture; that Kester Kabunga is his cousin; that the house

of Kester Kabunga is five metres away from his house; that they grew up together;

that on the morning of 2nd August 1999 on his way to school he was stopped by four

245

school children who got into his vehicle and the one whose name he mentioned, told

him about the attack on Katima Mulilo that morning.

[692] The witness was a very evasive witness, gave inconsequential answers, gave

answers which made no sense at all, to such an extent that this court had to remind

the witness that this court has to establish the true facts and was not interested in

‘failry tales’. This witness was a poor witness and the distinct impression this Court

got was that the witness was not truthful when he made the allegation that his

testimony in chief was false. If Sgt. Simasiku had provided all the necessary

information the question which comes to mind how could Sgt. Simasiku have known

that he was stopped by children, that the one whose name was mentioned informed

him about the attacks that morning on his way to school? This was information only

known to the witness himself.

[693] I am satisfied that what the witness testified in his testimony-in-chief was not

an untrue version of the events testified to by the witness and that the allegation that

the contents of his witness statement had been prescribed to him by Sgt. Simasiku,

is false. The Sate was thus in my view entitled to confront the accused during cross-

examination with the testimony-in-chief by the witness, Libanda. The testimony of

Progress Mibonda was not disputed and stands uncontradicted, namely that he

assisted the accused person to get a group of persons to cross the border into

Botswana. The description of the vehicle used by the accused is also not disputed.

The evidence of the witness Kanzeka was that he had assisted the accused on two

occasions to get individuals across a river and into Botswana, although this was

denied by the accused. The testimony of Kanzeka was that on one of those

occasions, the group consisted of 30 persons and he was paid N$ 150.00 by the

accused.

[694] The evidence of Libonda supports the evidence of Kanzeka. Libonda testified

about a gathering where N$ 150.00 was collected to assist a group of 30 persons on

the request of the accused, that this group was transported to Ngonga at night and

that the vehicle of the accused was one of the vehicles used. Kanzeka testified that

the accused arrived there with his yellow Toyota Hilux bakkie with registration

number N 678 KM, and that he observed three vehicles. A reasonable inference to

be drawn is that the N$ 150.00 collected at the gathering was the money paid to

246

Kanzeka when he demanded payment. The accused confirmed that he was the

owner of the motor vehicle with registration number N 678 KM. The Kester

Kambunga referred to by Libonda can in the circumstances refer to no other person

than accused no 102.

[695] Mukushi Events Kaine testified that on the evening of 1st August 1999, he

observed the motorvehicle of the accused at Makanga prior to the attack, and that he

knew that vehicle since he used to travel with that vehicle to Katima Mulilo. This

testimony was never challenged during cross-examination and stands

uncontradicted. Walters Sikochi also testified about observing the vehicle of the

accused at Makanga on the evening of 1st August 1999. Although the witness

conceded during cross-examination that he did not see the registration number of

the yellow Hilux Toyota bakkie (and that by implication that it could have belonged to

someone else) it was never put to the witness (as testified by the accused) that the

vehicle of the accused was not at Makanga but was at the home of the accused

person. The evidence by the accused that his vehicle was at his home on the

evening of 1st August 1999, must in view of the uncontested evidence that his vehicle

was observed at Makanga, be rejected as false.

[696] The reason given by the accused why the witnesses, Mibonda, Kanzeka and

Kanchele had incriminated him was, as indicated previously, pure speculation. When

confronted by Exhibit EGO, an inscription made by a co-conspirator about his

involvement in assisting that individual from crossing the border into Botswana, the

accused stated that he had no knowledge of such an incidence. The accused did not

categorically deny that such inscription was not the truth. This inscription is an

executive statement.

[697] The evidence adduced by the State overwhelmingly proves that the accused

was actively involved in transporting a large number of individuals to cross illegally

into Botswana and made his vehicle available to transport rebels from Makanga prior

to the attacks on 2nd August 1999. The bare denial by the accused cannot be

reasonably possibly true in the circumstances. I am satisfied that the evidence

proves beyond reasonable doubt overt acts committed by the accused and that he

possessed the required hostile intent.

247

Fabian Thomas Simiyasa (accused no. 96)

[698] Oscar Mwisepi testified in respect of his role in attempiting to secede the

Caprivi Region by stating that he (ie Mwisepi) was the body guard of Muyongo, that

he persuaded people (to join the course), and that he was one of the persons

‘involved in logistics’,ie that he was responsible for transport. He testified that people

were divided and assigned in different places and that he was in Liselo where he

performed these roles. Persons who performed the same role (ie in respect of

transport) were Eugene Ngalaule and Fabian Simiyasa. It appears that the accused

guarded Muyongo only one night.161 The witness testified that Fabian Simayasa (like

Eugene Ngalaule) recruited young men and women and arranged for transport to the

border with Botswana. Mwisepi testified that Fabian Simiyasa gave a lift to a young

man, who had guarded Muyongo and also gave a lift to a group who had attacked

the town. One of the persons so given a lift according to Mwisepi is an accused

person, O’Brian Sinkolela Mwanayambe. Mwisepi testified that the reason why

people were going to Botswana was to ‘enhance the idea of seceding Caprivi’.

[699] When asked how he knows Fabian Simiyasa, the witness replied as follows:

‘He is a prominent person My Lord, the person who I know that he played a big role

in the idea of seceding the region. I remember he is a person who gave a lift to some people

from Liselo to join those at Makanga. That I remember he is a person also that moved from

Makanga to Kalumba who happened to take water for the ninety two (92) on October 6. That

he is one of those who happened to have been an escort to Muyongo when he was entering

Botswana. That I remember he is one person who gave a lift to some young men to go and

join them with others whilst the day of the shooting was drawing closer my Lord’

[700] Ms Sithole-Mwenda, counsel appearing on behalf of the accused at that

stage, rose and remarked that the witness was testifying as if he were amongst

those who had been given a lift and wanted to get clarity on that point. The witness

replied that he was one of those who played a role. Mr January pointed out that if

any part of the testimony of a witness is not clear to counsel, it could be clarified

during cross-examination where upon this court respondend as follows:

161 P 622.

248

‘Yes, I can understand that but to obviate the need for unnecessary cross-

examination by defence counsel it is imperative that the witness as far as possible testifies

about his experiences which he gained first hand, and not to include hearsay because then

counsel would have to clarify the idea that at the end it was just hearsay evidence.’

[701] The witness was subsequently asked that his testimony regarding Fabian

SimiyAsa being involved with transportation, where he got that information from and

the witness replied as follows: 162

‘That My Lord where such issues used to be done, that’s the places where I used to

be found that making a bit of clarification. I regard his as my parent as well that my biological

father is married to the young sister and its in the village where I used to stay. From the

house where I used to sleep to the house, to his house is less than hundred(100) metres.

Thank you so much my Lord

(Mr January): Please proceed with your next person. . .’

[702] It is clear, at least to me, that the reply of the witness did not answer the

question namely, from where he had obtained such information. It not only left the

question unanswered but created more uncertaintly. Mr Kachaka in his heads of

arguments submitted in this regard that the witness in his summary (in response to

the question how the witness knows Fabian Simiyasa) appears to have put together

all that the witness had heard from other persons, over the radio, and read in

newspapers, and remarked that the witness had testified himself that he (ie the

witness) was not part of the events which unfolded on 2 August 1999. Nevertheless,

as I have indicated, the answer remains unclear.

[703] During cross examination by Ms Sithole-Mwenda, the witness testified that the

accused was one of the persons who transported Muyongo when he fled Namibia

but stated that he was not part of the entourage. When Mwisepi was asked how he

then knew that the accused transported Muyongo to Botswana the witness replied

that it was not a secret. This in my view implies hearsay evidence on this point. The

witness was asked whether he was part of the group which attacked the town and

which group was given a lift by the accused. The witness replied that he was not part

of such a group. The witness conceded that this evidence was hearsay. The witness

was asked if he were with the accused when according to the witness water was

162 P 776, lines 1-11.

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delivered to the group of 92 at Kalumba. The witness replied he was in the village

Liselo where the water was taken from, but was not with the accused when he went

to deliver the water at Kalumba. This again amounts to hearsay.

[704] It was put to Mwisepi that the accused was between September and October

attending a caretaker’s training at Harmony Centre, then in Okakarara ‘ for about

eight weeks’. 163The witness disagreed. It was put to the witness that the accused

denies ever giving a lift to someone to attack Katima Mulilo on 1 st August 1999, that

on 1st August he was on stand-by (duty) at work and was summoned to go and

inspect a pipeline just before Kongola, that he inspected an engine at the village

Mutumbwe, and that he went to park his vehicle around 21h00 at the office and took

a lift home. The witness replied that he had no comment, but disagreed with the

statement. It was put to the witness that the accused was a fieldworker who at times

worked during weekends and that it was not possible for him to recruit persons or

organise transport, that he had no persmission to keep a vehicle at his home164 and

was given any motorvehicle which was available whenever there was work to do and

that the vehicles he used to drive were at other times driven by the other drivers. The

witness disagreed. The witness testified that he does not know why the accused did

not go to Botswana. It was put to the witness that the accused will deny any alleged

conversation he had with the witness where it was alleged that one of his co-

accused had supplied him with diesel, that he had not previously met this co-

accused until they were arrested and that he used to hear that this individual was the

head of the government garage. The witness replied that he testified about what he

knew.

[705] Alfred Kupulo Kupulo was warned interms of s 204 of Act 51 of 1977. This

witness testified that he had joined the CLA in order to fight the Government of

Namibia. The witness testified about an occasion when he found himself in a group

of men at Kalumba where the accused brought food to them. The witness testified

that the accused arrived there with a 4ᵡ4 Colt, Government vehicle. According to this

witness, the accused told the group not to be worried about food and water since he

would supply it to them. During cross examination, the witness was referred to an

affidavit apparently deposed to by this witness and which was used in court in

Botswana in an extradition application in respect of 13 individuals and in which 163 P 1436, line 9.164 P 1437.

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affidavit the witness stated that one Danbar Mushwena brought food to them at

Kalumba. The witness confirmed this, and was asked for an explanation. The

witness replied that both of them, ie Danbar Mushwena and the accused brought

food. When asked why he did not mention Danbar Mushwena earlier the witness

replied that he was not asked how many persons brought food to them. It was put to

the witness that the accused denies bringing food to them or promised to bring water

to Kalumba, that the accused was at work and parked the vehicle as usual at 17h00.

The witness disagreed stating that he, himself, drunk the water and ate the food. The

witness agreed that the incident accured on a work day but stated that the food was

brought during the night.

[706] Walters Mwezi Sikochi testified that Fabian Simiyasa was at Makanga on 1st

August 1999 and was driving a TATA Truck. This witness identified another accused

person in court as Fabian Simiyasa. This was a wrong identification. Hubby Habaini

Sinyabata testified that on Sunday, 1st August 1999 during the evening he was at his

village at Itobo, when he observed a big vehicle, a TATA arrived loaded with people

and stopped near his house. His brother-in-law disembarked, came to the courtyard,

got a lunchbox and got onto this GRN vehicle. According to this witness the driver

was Fabian Simiyasa. This witness was unable to identify Fabian Simiyasa as one of

the accused persons before court.

[707] Richard Bakabuba Sikwela testified that he hails from Masida village and that

on 1st August 1999 he was collected from his village by certain individuals who were

armed with fire-arms. They travelled in a Hilux bakkie to a rebel camp, Makanga and

narrated what transpired there. He boarded a vehicle destined for Katonyana, other

groups departed for other destinations amongst others Wanela Border post, the

police station, NBC and the Shopping Centre. The group in which he was consisted

of about 12 individuals. They travelled from Makanga in a GRN TATA, white in

colour truck driven by Fabian Simiyasa. The witness described how they passed a

road block. He only possessed a stick whilst other members of the group were

armed with firearms. The witness described what happened at Katonyana and that

he eventually fled the scene. This witness failed to identify Fabian Simiyasa as one

of the accused pesons. This witness was not cross-examined by counsel appearing

on behalf of the accused, namely, Ms Sithole-Mwenda.

251

[708] Vincent Simwanza Mayumbelo testified that he was employed as a security

guard by the firm ‘Katima Security’ and his duty was to guard motorvehicles

belonging to the Government of Namibia. On Sunday, 1st August 1999, he was

performing duty at ‘Rural, Water Supply’ when there came a ‘government driver’

between 9h00 and 10h00 to collect a vehicle. The driver was one Fabian Simiyasa,

who informed him that he was there to collect a vehicle in order to go to Kongola to

repair a water pump. Fabian Simiyaza came to collect a white TATA lorry with

registration number GRN 10972 and ‘signed in the book’. Fabian Simiyasa did not

inform him when he would be returning. According to this witness, Fabian Simiyasa

returned during the night at about 02h00 and parked the vehicle. The time was

registered by the driver and he signed. The driver was then picked up by a Colt

double cab GRN motorvehicle. After the driver had left he heard the sound of

gunfire. The witness was unable to identify Fabian Simiyasa as one of the accused

persons in court.

[709] During cross-examination, it was put to this witness that Fabian Simiyasa

says that he came to park the vehicle at approximately around 21h00. The witness

disagreed and said it was around 02h00. It was put to the witness that Fabian

Simiyasa says that there was much work and the distance between Katima Mulilo is

around 120km and that was the reason he returned only at 21h00. The witness

insisted that it was 02h00. It was further put to the witness that when Fabian

Simiyasa brought the vehicle back he did not register it in a book. The witness

insisted that Fabian Simiyasa signed the book. It was put to the witness that no Colt

vehicle came there to pick him up but that he took a taxi from town centre. The

witness replied that he, ie the accused, boarded a GRN vehicle. The witness

conceded that he did not see the driver of the GRN motor vehicle and did not see the

GRN number but the reason for failing to observe the number and the driver was due

to the fact that the GRN vehicle parked some distance away from where he was.

[710] Kennedy Muchisani Tiyeho testified that during 1998 he went to Botswana in

the hope of finding employement, but later returned through repatriation. On 1st

August 1999 whilst at his village Sikalenge, Fabian Simiyasa arrived there and told

him that they should come together that evening. He testified that Fabian Simiyasa is

known to him as Simiyasa was employed at Water Affairs and used to repair

boreholes. That evening Fabian Simiyasa arrived there with TATA vehicle, the

252

property of the Government. The witness testified that when he had a conversation

with Fabian Simiyasa earlier that day; he arrived there with the same vehicle. A

number of men including himself boarded the vehicle and they drove to Kaliyangile

where three young men also boarded the vehicle. One of them was armed with a

firearm. They proceeded to Makanga where he found many people and they were

registered by a Mr Chainda. There were also other vehicles. He subsequently

boarded a green Bantam vehicle with other persons and left for Waya-Waya and

from there to Mpacha. The witness failed to identify Fabian Simiyaza as an accused

person before court.

[711] Mountain Efferson Chiyeye testified that on 30 July 1999 he reported for work

at Rural, Water, Supply where he was employed as a senior artisan foreman. That

morning he received people from Kongola who were operating the engine at that

pump station. Kongola pump station is 127 km from Katima Mulilo and under the

jurisdiction of Rural, Water Supply for the maintenance of the pump station which

provides water for a distance of about 70km to communities. He opened job cards

and instructed Fabian Simiyasa to take the job cards, and a Mr Chakanda and to

proceed to the pump station and service it. Both Fabian Simiyasa and Chakanda

were employed by ‘Rural Water Supply’. The witness testified that on the

maintenance section he was the overall supervisor. The witness testified that in

addition to the service of the engine at Kongola, the other job cards were for

Mutongwe where they were suppose to construct a platform for an engine. After he

had given those instructions he ‘opened a trip authority’. Fabian Simiyasa asked for

permission to go and get his salary at the bank, there was only one branch at that

stage namely, Bank Windhoek, situated about 200m from Rural Water Supply. The

trip authority was made out for a month and it was in respect of a TATA truck, which

was a new truck which they had just received and was assigned to Fabian Simiyasa

‘specifically for use’ and was acquired a few months earlier. The vehicle was

assigned to Fabian Simiyasa for use in respect of the repair of all Rural Water

Supply infrastructures.

[712] The witness testified that he only saw Fabian Simiyasa again on Sunday 1st

August 1999 when Simiyasa came to his house. The witness testified that the

procedure is that once a job has been completed the person who did the work would

return with the job card to the supervisor but that Fabian Simiyasa did not return to

253

him on the Friday neither did he do so on the Saterday. On Sunday 1st August 1999

Fabian Simiyasa came to him to ask for the key of the TATA truck. He found it

strange and asked Simiyasa where the key was and Simiyaza replied that it was in

the office of Pieter Tweufilwa, the artisan at the mechanical section. They drove to

Rural Water Supply where the key was handed over to Fabian Simiyasa and this

witness also entered the kilometre reading and completed all the necessary

documentation in respect of the trip authority. Whilst completing the trip authority he

instructed Simiyasa not to leave Gilbert Chakanda behind because Chikanda had by

then been 3 days in town without operating the water pump engine at Kangolo.

During the early hours of 2nd August 1999, he heard gunshots in all directions. At

about 07h30 he drove to Rural Water Supply and found a lot of people had gathered

at the gate entrance who reported to him about the shooting intown. There were also

two police officers. He told Gilbert Chakanda whom he found there that since

Simiyasa was nowhere to be seen that he should go back and instructed the other

employees to return home since the situation was chaotic.

[713] On the 3rd August 1999 he was visited at home by two persons from Safety

and Security who made enquiries about the whereabouts of the TATA truck. At that

stage, he thought that the truck should be at Kongola in possession of Fabian

Simiyasa and he informed thse two persons accordingly. These individuals asked

whether they could go to Rural Water Supplies to see if the vehicle was there. When

they got there, they found the vehicle there. On inspection he found the vehicle dirty

and full of grass on the sides and on the bumpers, the loadbox was dirty and he

observed items such as toothbrushes, slippers and other goods. Inside the loadbox,

the paintwork was in order but outside where scratches. At this stage Simiyasa was

not present. On Monday, 9th August 1999, he discovered a leave form in respect of

Mr Simiyasa with Ms. Simeja and inspected the leave form. On this form only the

name of Fabian Simiyasa appeared and it was recorded in the handwriting of Ms

Simeja. No further details like the period of the leave, the date when it was requested

or the signature of the applicant were apparent from the leave form. The witness

testified that he had no knowledge about this leave application.

[714] On 22 August 1999 he was at home when Fabian Simiyasa arrived there in

his own motorvehicle, it was during a week-end and during the day. Fabian Simiyoza

asked whether the witness was looking for him to which the witness answered in the

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affirmative since he has not seen him at work. Fabian Simiyasa then told him that he

was on leave and the witness encquired who had approved his leave to which

question Fabian Simiyasa replied that it was the witness himself. The witness replied

that he did not approve such leave and he became ‘bitter’ because he was accused

of doing something which he did not do. The witness testified that he asked Fabian

Simiyasa where he was on 2nd August 1999. Fabian Simiyasa replied that he had

gone to Mutongwe ‘delivering the soil’. The witness testified that he had previously

observed no soil on the loadbox of the TATA truck. The witness testified that Fabian

Simiyasa told him that he did not go to Kongola because he did not have time to go

there and an intense quarrel ensued because of the fact that Fabian Simiyasa did

not go to Kongola.

[715] The witness was asked whether he knew the GRN registration number and

the witness replied ‘it is in the series of the 10 000 ‘s’ ’ and that there were two

trucks. The witness testified that a one ton 4ᵡ4 TATA truck was assigned to Fabian

Simiyasa and the other one ton TATA was assigned to the artisans of the

Mechanical section and that during the period 30 July to 2 August 1999 that other

truck was in the garage, it was not operating and that the only TATA truck which was

available was assigned to Simiyasa. The witness testified that since Kongola is

127km from Katima Mulilo he expected the distance travelled by the truck to be in

exess of 200km inclusive of passing through Mutongwe on his way to Kongola or on

his way back, however on his inspection the vehicle had only travelled 22km. This

figure was calculated by himself by subtracting the kilometre reading on the trip

authority (before the journey was undertaken) with the kilometres reading on the

odometer and the difference was 22km. The witness testified that from Katima Mulilo

to Mutongwe is about 55km. The witness testified165 their Directorate was the only

directorate in the region who had those types of vehicles namely, 1 ton 4ᵡ4 trucks.

[716] During cross examination by Ms Sithole-Mwenda, the witness testified that

Fabian Simiyasa was a senior handyman and that they had a good relationship; that

Fabian Simiyasa was responsible for servicing and repairing of boreholes, pumps

and pipelines along the Kongola line, and did civil and mechanical work; that the

keys of the vehicles were kept in the office of Mr Tweufilwa and that drivers had

access to that office; that 30 July 1999 was payday; that he was surpriced to hear

165 P 24525, lines 17-19.

255

that Fabian Simiyasa requesting the keys of the truck from him because Fabian

Simiyasa knew that the keys were kept in the office of Tweufilwa; that he did not

mention in his statement toothbrushes and slippers but that were included in the dirt

he referred to in his statement; that he stated in his statement that he only knew one

police officer at the time, namely Shadrick Mayo, but did not state in his statement

that he went with two police officers to inspect the TATA truck; that he inspected the

TATA truck after Fabian Simiyasa had returned it; the witness conceded that he did

not know if the toothbrush and slippers were on the loadbox before Fabian Simiyasa

received the vehicle.

[717] The witness was asked since the keys of all the vehicles were kept in the

office of Mr Pieter Tweufilwa whether there was a possibility that other drivers could

have used the truck assigned to Fabian Simiyasa to which the witness replied that

he would not know about it. The witness on a question put to him, replied that other

regions also had one ton TATA trucks. When asked whether a truck from another

region could have been seen in Caprivi region the witness replied that he would not

know that.

[718] The instructions of Fabian Simiyasa was put to the witness namely that he

had worked over that weekend on the instructions of the witness and that he could

not have gone on Friday or the Saterday to Kongola because he had to sort out

domestic issues’. The witness replied in re-examination that Fabian Simiyasa was

suppose to ask for permission to attend to his private issues and not to accept the

keys and take the job cards to do the work. It was put to the witness that Fabian

Simiyasa did not go with Chakanda because he could not find him in town, that since

time was running out he decided to check the pipeline from Katima to Mutombwe

and carried soil which he used to work with at Mutombwe and he then continued to

Masida and when it got dark, he decided to return; that in respect of the 22 km on

the odometer he did not know what could have happened because he used the

vehicle in the rural areas. It was put to the witness that Fabian Simiyasa said that he

signed the application for leave form after he had completed it and that the witness

approved his leave. The witness replied that he had never authorised any leave. It

was put to the witness that the events of 22nd August 1999 as narrated by the

witness is denied by Simiyasa, the witness replied that his testimony was the truth.

256

[719] The accused testified that he was arrested on 16 th August 1999 and was at

that stage employed by Rural Water Supply, ie by the Government of Namibia as

senior handyman. He testified that he was arrested at work and taken to the police

station where he was assaulted. The accused confirmed the evidence of Chiyeye

that he was given certain instructions. On the Saterday, he was still busy at the bank.

On Sunday, he couldn’t find the person who was supposed to go with him. The

accused related how he went to the house of Chiyeye and was later provided with

the keys of the vehicle, a one ton GRN TATA truck, a small truck white in colour with

registration number 10972. When he arrived at Mutombwe he ‘fixed’ the engine and

carried on to inspect the pipelines up to Masida and returned home in Ngweze and

parked the vehicle at about 21h00. When he arrived at the gate, he met the security

guard who open the gate, parked the vehicle and gave the keys to the security guard

and then proceeded to his house at Liselo. The accused denied that he had taken

food to Kalumba as testified by Kupolo; never promised to bring food and water; that

he did not drive with a GRN Colt 4ᵡ4 to Kalumba; that he had never been at Kalumba

and does not know Kupolo; that Kupolo testified ‘lies’ gainst him because Kupolo

himself was a secessioninst and in order not to be arrested he had to mention a

name; that he played no part in the cutting of Caprivi as testified to by Mwisepi; that

on October 6, he was not in Katima Mulilo but at school at Harmony Centre; that he

did not escort Muyongo; that he did not give a lift to anyone.

[720] During cross-examination by Mr July, the accused denied that he was at

Makanga. He testified that prior to his arrest, he was a member of SWAPO. He

testified that he heard over the radio that the President of the UDP was Mishake

Muyongo. The accused stated that there were many GRN TATA trucks in existence

in the Caprivi Region during 1999, that at Works Department, at Education, at the

hospital were TATA trucks –all white in colour, but in respect of one ton TATA trucks,

he was aware of two at the place he was employed but did not know about other

TATA trucks in other departments. The accused testified that a vehicle would be

assigned depending on the type of work he had to do and for small works he would

use a small vehicle like a Nissan Safari or the Colt 4ᵡ4. There were two Colt vehicles

with registration numbers 10496 and 10475. The accused testified that he used the

Colt GRN 10495 in the field at boreholes during the year 1998 but does not know

which month he used that vehicle. The accused denied that he drove that Colt

vehicle during the year 1999.

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[721] It was pointed out to the witness that counsel who appeared on his behalf had

put to the witness Hobby Sinyabata that Mr Simiyasa was a helpful person who liked

to give lifts to help almost everyone and that this instruction is contrary to his

evidence namely that he did not give lifts to people.The accused disagreed. The

accused denied that he received an instruction from Cheyeye that under no

circumstances should the accused leave for Kongola without Gilbrert Shakanda.

According to the accused he was just instructed to give Shakanda lift to Kongola.

The accused agreed that it was not put during cross-examination to Mountain

Chiyeye that he did not give any instruction to the accused that the accused should

not leave without GilberT Shakanda. The accused testified that he had agreed with

Gilbert Shakanda to pick him up at his home between 9h00 and 10h00 but when he

arrived there just past 10h00 Gilbert was not at home. The accused testified that

when he could not find Shakanda, he left for his village and thereafter left after

14h00 to carry out his assignment.

[722] The accused conceded that he did not testify during his testimony-in-chief that

he first went to his village for lunch. The accused denied that he testified that he first

went to Mutombwe and denied that after Mutombwe he went to inspect the pipeline

at Masida. The accused testified that he did not go to Kongola. The accused testified

that when Katima Mulilo was attacked he was asleep at his village, Liselo

approximately 10km from Katima Mulilo. The accused testified that he knew that it

was 21h00 when he returned the TATA truck because he had a watch and that he

told the security guard to record the time. It was however never put to the security

guard that he was asked to record the time. The accused testified that he was on

leave from 2nd August 1999. It was pointed out to the accused that it was never

disputed during cross-examination of the witness that the vehicle was assigned to

the accused for the entire month of August. The accused agreed that it was not

disputed.

[723] The accused testified that his leave was for a period of 15 days and that he

had applied for leave a week before he went on leave. The accused could not recall

the date when he applied for leave, but stated that it was during July. He put in leave

in order to rest at the village. It was however not put during cross examination to

Chiyeye that the accused applied for leave a week earlier and it was not put to the

258

witness Chiyeye that he would be able to find the accused at Liselo village should he

need him. The accused testified that when he woke up during the morning of 2nd

August 1999 he could hear the sound of gunfire. When it was put to the accused that

he knew exactly where those sounds came from and what caused those sounds, the

accused disagreed. The accused denied that, prior to 1st August 1999, he knew of

plans to secede the Caprivi region by violent means, and stated that he did not know

about the exodus of people to Botswana. The accused testified that he was not

aware of any rebel bases and denied that he took food to persons at such rebel

bases.

[724] The accused in an unguarded moment testified that no child of his went to the

‘struggle’.166 The accused was asked which ‘struggle’ he was referring to since the

prosecutor himself never referred to a struggle. The accused replied that he heard

about secession over the radio on 2nd August 1999. The accused conceded that he

had heard over the radio that a group of Caprivian men crossed the Chobe River on

27 October 1998 with weapons of war. The accused conceded that he heard over

the radio about Caprivians leaving Namibia illegally for Botswana but did not hear

the reason why they had left. The accused testified that he had been employed at

the Ministry of Rural Water Supply from 1995. The accused was asked: ‘since 1995

there were no other Fabian Simiyasa who was responsible for fixing boreholes in

Caprivi. . .’ and the accused replied that (the other) Fabian Simiyasa was not

there167but that there were many other people who were repairing boreholes.

[725] The accused testified that the trip authority was made out for only one day by

Chiyeye but conceded that had Chiyeye known that he would be on leave, Chiyeye

would not have made out the trip authority for one day. The accused denied that he

registered people to join the CLA. The accused testified that he did not know the

security guard Vincent Mayumbelo and that he saw the security guard for the first

time when he returned the TATA truck that evening. The accused testified that he

saw Hobby Sinyabata for the first time when the witness gave his testimony in court.

The accused denied that he had driven a GRN TATA truck full of people as testified

by Hobby Sinyabata. The accused testified that he did not know Kennedy Tiyeho

prior to his arrest and does not know where Sikelenge village is situated. The

accused denied ever going to Sikelenge village. The accused denied that he ever 166 P 38106, line 30-31.167 P 39116, line 24-25.

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went to Makanga in a GRN truck as testified by Walter Sikochi. The accused agreed

that if he had travelled to Mutobwe and back to Katima Mulilo the distance travelled

would have been in excess of 100km.

[726] The accused further agreed that according to the testimony of a Mr Ludik who

inspected the speedometer cable, there was an unscrewing and screwing of the

cable of the vehicle, but added that that evidence did not concern him since he didn’t

do it. The accused was confronted with job cards made out on 23 rd and 24th

September 1999 for work to be completed on the Kongola road and why someone

would complete these jobcards if he was at Harmony centre. The witness replied that

it was possible, since the job would have to wait until he had returned. This reply

does not make any sense at all.

[727] The accused was referred to Exhibit EGO1 (H1(2)) where Brian Mboozi, a co-

accused stated:

‘On the 29th July 1999 we were sent that we must go to Sasha camp so that we could

go and get 91 mortars and its bombs. Now it was found that the one which they trusted there

at Linyati that it was the one which was confiscated by the Bostwana last year with the 92.

We came back on 2nd August 1999 at the time at night. The one who gave us lift was

Simiyasa. He brought us to Chandu at night. We found that others were already sent to

their posts. At the time of 02:00 then we ran with the young man. Now seeing that then I saw

that I should go to Zambia then I escaped. Then I went to Makanga where I stayed for two

months and few weeks. Up to now is where I came from.’

The reference to Simiyasa in my view is vague and does not refer to the accused

before court. The accused denied knowing Mboozi and denied taking persons to

Chandu.

[728] I shall deal with two issues in the evaluation of the evidence presented to

Court. The first issue referred to by Mr Kachaka in his heads of argument is that

contrary to the submission by counsel appearing on behalf of the State, no inference

can be made that the accused person was the driver of the TATA truck as testified

by the State witness since the accused had given an account of all his movements

with this TATA truck. It must be kept in mind that those State witnesses who testified

about seeing Fabian Simiyasa driving this white GRN TATA truck did not identify

260

Fabian Simiyasa in court. It is further common cause that the accused person was in

possession of a white GRN TATA truck on 1st August 1999, which TATA truck was

parked at Rural Water Supply. A few hours later the town of Katima Mulilo was

attacked. The security guard testified that the GRN TATA truck was returned by the

accused approximately 02h00 and that he subsequently heard the sound of gunfire.

It is not clear how long after the vehicle was parked he heard those sounds.

Mountain Chiyeye testified that at that stage, there were only two one ton GRN

TATA trucks in the Caprivi Region. This testimony was never disputed. Although

there was the suggestion during cross-examination by Ms Sithole-Mwenda that the

possibility existed that someone else employed by Rural Water Supply could have

driven that vehicle, this possibility can be excluded since the evidence of the

accused himself does not support the possibility of another person driving the vehicle

whilst the vehicle was in his possession, and there is no evidence at all that this

vehicle was used by someone else after 21h00 if, for the sake of argument, the

version of the accused is accepted. The possibility that another vehicle from a

difference region could have been seen by the witness is so remote and amounts to

speculation and should be excluded.

[729] The evidence of Chiyeye which is also uncontested, is that during the period

30 July until 2nd August 1999, the second TATA truck was not operational and was in

the garage. This leaves only one GRN TATA truck operational in Katima Mulilo on 1st

and 2nd August 1999 and that was the vehicle used by the accused on 1st August

1999. I have excluded the possibility that someone else could have driven that

vehicle. Although the witness Richard Sikwela could not identify Fabian Simiyasa

who according to the witness he had seen at Makanga and who had driven a GRN

TATA truck from Makanga to Katonyama where an attack took place, his testimony

that he had observed a GRN TATA truck and had travelled in such a truck from

Makanga to Katonyana was never disputed during cross-examination by counsel. In

fact, not one question was put to this witness during cross-examination. This

evidence, namely, that a GRN TATA truck was at Makanga and was driven to a

target which was attacked by the rebels, stands uncontroverted and must be

accepted by this Court. There is only one person in my view who could have been

the driver of that GRN TATA truck on 1st August 1999 and that was the accused. If

this is accepted, as it should be, then there could also have been only one person

who could have driven the vehicle at Sikalenge village as testified by Kennedy

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Tiyeho, only one person who could have driven the GRN TATA truck as testified by

Walter Sikochi, and only one person who could have driven the vehicle at Itobo

village as testified by Hubby Sinyabata, namely the accused person. This in my view

is the only reasonable inference to be drawn from the evidence presented by the

State.

[730] The evidence by the accused that he drove the vehicle, inter alia, to

Mutumbwe and returned it at 21h00 cannot be accepted as reasonably possibly true

in the circumstances. It is not disputed that according to the odometer reading that

GRN TATA truck only registered 22km. If the version of the accused is to be

accepted, then the distance travelled should have been in excess of 100km in view

of the fact that Mutumbwe is approximately 50km from Katima Mulilo. The

explanation by the accused that he did not know what had happened since that

vehicle is used in the rural area cannot be accepted as a plausible explanation. It is

in fact no explanation at all. The accused never suggested that the odometer was

defective. This would have been highly unlikely in view of the fact that it was still a

new vehicle. If one therefore has regard to the distance travelled, namely 22km, then

the testimony of the accused that he travelled to Mutumbwe must be false. There is

the further suggestion that the speedometer cable had been tampered with.

[731] The testimony by the accused that he parked the GRN TATA truck after

21h00 is rejected. The evidence of the security guard was that this vehicle was

parked by the accused approzimtely 02h00. This witness is a person who was seen

by the accused for the first time that day and is in my view an independent witness.

The testimony by the accused that he had told the security guard to record the time

was never put to the security guard. This is an important omission. If this was indeed

the case, it would have supported the version of the accused that he had parked the

vehicle hours prior to the attacks. The security guard, Mr Vincent Mayumbelo,

testified that after the accused had parked the GRN TATA truck, that a GRN Colt

motorvehicle transported the accused from Rural Water Supplies, contrary to the

version of the accused that he left on foot. This GRN vehicle was parked a distance

away and the witness could not see the driver or the registration number. That this

was the imagination of this witness is highly unlikely. Why would the witness have

testified about a Colt motorvehicle? If he had not seen such a vehicle? It is

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significant that the accused had previously, and this was admitted by the accused,

used a GRN Colt motorvehicle in connection with his employment.

[732] Then there is the testimony about the application for leave form seen by

Mountain Chiyeye only on 9th August 1999. This in my view is also an independent

witness and there was no suggestion that he testified out of malice or ulterior motive.

It was never put to this witness during cross examination that the accused had

already applied for leave one week prior to 30 July 1999. This witness denied that he

had ever authorised any leave in respect of the accused even through it was put to

him that he did so. The record clerk Ms Semeja was not called to explain how she

obtained the application for leave form. The explanation by the accused why he did

not take along the water pump operator, Mr Chakanda is also suspect and indirect

opposition of what he was instructed to do. According to the accused, the agreement

was that he should get Chakanda between 9h00 and 10h00 but left only at 14h00

after he apparently could not find him. It appears to me that it was convenient for the

accused person not to have the company of Cahkanda because this would certainly

have jeorpadised his hidden agenda for the day. The accused down played the

instruction by Chiyeye that he should not leave without Chakanda by stating he was

only required to give Chakanda a lift. This cannot be true in view of the uncontested

evidence that it was important for Chakanda to get to Kongola because the

waterpump had not been operational for three days.

[733] The second issue relates to what was testified by Alfred Kupulo Kupulo and

the response by the accused to that evidence. Kupulo testified that his uncle

Kennedy Molamo informed him about the existence of the CLA during September

1998 and he decided then to join the CLA. On 6 October 1998 he travelled with a

vehicle driven by Kenneth Sitali to Sibinda, where more people joined them including

one Albert Mangalazi, who is married to his aunt. Mangalazi hails from the village

Liselo. Approximately 22 men joined them and the same night they proceeded to

Kalumba. The next morning Fabian Simiyasa brought food to them.

[734] The accused testified that during September-October 1998 he underwent

training at Harmony Centre (situated between Windhoek and Rehoboth) and later at

Okakarara for a period of eight weeks. This is an alibi defence. Although it was put to

Kupulo that the accused denies bringing food to the rebels at Kalumba, the reason,

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ie the alibi defence, was never put to this witness during cross examination as

testified to by the accused in his evidence-in-chief. What was put to the witness was

that the accused was at work and that the vehicle allegedly used by the accused was

parked as ‘usual at 17h00’. This is a glaring and material contradiction, a

contradiction which seriously impacts on the credibility of the accused. The ‘Harmony

Centre- alibi’ was first raised during evidence-in-chief by the accused.

[735] During cross-examination, the accused was questioned whether jobcards

would have been made out on 23rd and 24th September 1998 for work to be

completed along the Kongola road if Rural Water Supplies was aware of the fact that

he was at Harmony Centre to which the accused replied it was possible. The

accused was also confronted with a job card 267 West to Mazoba for 6 October

1998 in respect of the installation of an engine and questioned why such a job card

was generated if his employer had known that he was at Harmony Centre. The

accused was was shown a document which he identified as a fuel voucher provided

by ‘Water Affairs’ dated 18 October 1998. When asked what that fuel vouncher

reflects the accused replied: 168‘it is indicating that I went and fuelled this

motorvehicle on the 18th’ (GRN Colt 4ᵡ4, no 10495). The accused also identified his

signature on the fuel voucher. The accused explained that he could have been in

Katima Mulilo on 18 October 1998.

[736] The accused was hereupon referred to his evidence-in-chief where he

testified: ‘On the 6th October My Lord I was not in Katima Mulilo. Mid-September we

came here to school at Harmony Centre. Then we went towards the end of October

1998. . . ‘ to which the accused replied that he could not recall the dates ‘very well’. It

should be abundantly clear that the ‘Harmony Centre-alibi’ ie the alibi that the

accused was not in Katima Mulilo on 6 October 1998 is false. The evidence proves

the contrary. The criticism of the testimony of Kupulo to the effect that the witness

had given two different versions under oath in two different Courts ( ie in Botswana

and in Namibia) in respect of who had brought food to the rebels at Kalumba was

adequently explained by the witness during cross-examination.

[737] I have discussed (supra) the consequences of raising a false alibi and have

refered to the relevant authorities and need not repeat same. The testimony of the

168 P 38185, lines 22-26.

264

accused that he was not the driver of a GRN TATA truck on 1st August 1999 when

rebels were transported to Makanga in preparation for the attacks and from Makanga

to pre-determined targets earmarked for attack by the rebels, and in particular

Katonyana police base, is rejected as false. I am satisfied the accused supplied the

rebels (ie members of the CLA) food at Kulumba, and by transporting rebels on 1st

and 2nd August 1999 for armed attacks in Katima Mulilo, that his conduct amounted

to overt acts, and that he had the required hostile intent.

Albert Sakena Mangilazi (accused no. 55)

[738] Oscar Munisitwela Mwisepi testified that Albert Mangilazi was someone who

he had “met the second time in the refugee camp,” and that Albert Mangilazi used to

give them advise concerning “the struggle”. During cross-examination Mwisepi

testified that he first came to know Mangilazi when they were at Lisello. It was put to

the witness that Mangilazi says that he has never advocated for the secession of the

Caprivi through the barrel of the gun and therefore could not have given them advice

or an update on the status of the struggle. The witness disagreed. It was put to the

witness that Mangilazi did not go to Dukwe with the idea of seceding the Caprivi

through the barrel of the gun but went there because he was harassed by the

members of the Special Field Force. The witness denied that there was such

harassment by members of the Special Field Force and that was just a ‘slogan’ used

by Mangilazi.

[739] This witness identified Albert Mangilazi in court as accused no. 55. Oscar

Luwake Simbulu was warned in terms of s. 204 of Act 51 of 1977. This witness

testified about an event of how he went to Singalamwe and subsequently to the

border of Angola and returned later. Thereafter the whole group moved to Sachona.

At Sachona a group of men came to join them and Mangilazi was amongst this

group. The witness testified that the accused held no position and was an ordinary

member of the group like himself. This witness identified Mangilazi as accused no.

55 in court. During cross-examination the witness testified that they remained at

Sachona camp for approximately a week and a half. He testified that he knew

Mangilazi from Liselo area since Mangilazi’s house is situated near the New

Apostolic Church. It was put to the witness that the accused was not part of the

group. The witness disagreed.

265

[740] Michael Maswabi Nuwe was warned in terms of s. 204 of Act 51 of 1977.

This witness recounted events of how a group of men went into Angola with John

Samboma in order to obtain military training from UNITA. They were unsuccessful.

The witness identified the accused person as one of the members of this group.

This group then went to Sachona where they were taught how to use bombs,

mortars, and AK 47 assault rifles. The witness testified that the accused was their

chef. He further testified that he stayed for six days with this group before he

escaped. This witness testified that he subsequently went to Dukwe refugee camp

in Botswana where he observed the accused. This witness identified Mangilazi as

accused no. 55 in Court. During cross-examination the witness testified that at

Sachona they were divided into groups but that the accused was not in the same

group as he was. He testified that he knew Albert Mangilazi since they were together

in the Army. It was put to him that the accused was never in the Army. The witness

insisted that the accused was in the Army. It was put to him that the accused was

never a chef. The witness replied that he, ie the witness, was telling the truth.

[741] The witness confirmed that he had testified that the accused was one of the

group that went with John Samboma in order to fetch firearms and confirmed that he

was told this by one Frederick Ntambilwa. It was put to the witness that this was

hearsay evidence. The witness disagreed and said even though he had heard about

it he personally saw them as they ‘were crossing’. It was put to the witness, as

instructions that Albert Mangilazi had never been at Sachona or at any rebel base

and that he has never been to Angola and thus could not have accompanied John

Samboma into Angola. The witness insisted that he was present in the “camp” and

that he went to fetch firearms.

[742] It was submitted by Mr Kachaka in his heads of argument that even though

the witness identified Mangilazi his identification was challenged, because the same

witness pointed at Kester Kabunga (accused no. 102) as John Samboma, and so

this witness could have made a mistake in the dock identification of the accused.

This in my view amounts to conjecture.

[743] Richard Kafunole Mutanale testified that he resides in Liselo village and that

during the year 1998 he met a man by the name of Albert Mangilazi who informed

him about a DTA meeting the next day at Sachona. The next day he, and other

young men left for Sachona. At Sachona they were welcomed by Francis

Mushandikwe, who to their surprise, told them that they should have strong hearts

266

and commitment of whatsoever will happen. The witness testified that he decided to

sneak away with his younger brother at night, however on their way, on the road,

Mangilazi recognized them and ordered them to board a motor vehicle, which they

did. They drove, passed Liselo, joined the road to Linyanti, but diverted to Kalumba

and entered the bush where they were off loaded. Here their names were registered

on request by Mangilazi and Mangilazi said the following: “. . . at that place where

you come, we come here to form or to make the army, private army.” Mangilazi told

him that the army belonged to Muyongo and that the purpose of the army was to cut

Caprivi from Namibia.

[744] Early in the morning, according to this witness, he and his young brother

succeeded to escape and went home. The witness testified that he had known

Mangilazi for a long time because he (ie Mangalazi) got married in Liselo. The

witness identified Mangilazi in court as accused no. 55. During cross-examination by

Ms Sithole-Mwenda the accused testified that during the year 1999 (month unknown)

the police came to him at his village where he was interrogated – he was under the

influence of liquor. The next day his statement was taken at the police station by

officer Chizabulyo. He was provided with a list of names and questioned about those

names. It was put to the witness that the accused will say that his testimony was a

fabrication because he lived at Sikahunga, very far from Liselo. The witness

disagreed. It was put to the witness that he did not know the accused. The witness

replied that because the accused found himself in trouble he would say so.

[745] It was put to the witness that the accused never told him about a DTA meeting

or took the witness to Mushandikwe. The witness replied that the accused knows

him, that’s the truth.

[746] Alfred Kupulo Kupulo was warned in terms of s. 204 of Act 51 of 1977. The

witness testified that he hails from Kupolo’s village. He testified that in his quest to

join the CLA he was transported by a motor vehicle driven by one Kenneth Sitali to

Sibinda. They stopped at Liselo School where approximately seven persons got onto

the vehicle. One of those persons was Albert Mangilazi. At Sibinda they found a

group of about 22 persons in the bush and moved to Kalumba at night. They

travelled in two vehicles. They stayed for two days at Kalumba and food was brought

to them. From Kalumba they were transported to Sachona where they arrived on 8

October 1998. They stayed for two weeks at Sachona and then moved to Linyanti

where they stayed for one day and then left for Libyu – Libyu. At this place three

267

young men escaped and were followed, which eventually lead to the death of Victor

Falali. (The evidence on record is that Victor Falali was shot).

[747] It was because of this incident that the whole group of 92 men were forced to

leave and went to Botswana. The witness identified Albert Mangilazi as accused no.

55 in Court. The witness testified that at Sibinda and Kalumba, Albert Mangilazi and

Kache Bronson were group leaders who had the responsibility of preventing fights

amongst the men and to ensure that the members respect one another. The witness

testified that when they arrived at Kasani, Botswana, they informed the Botswana

Police what they had been told to inform the police, namely that they were harassed

where they came from. They stayed with the police for 3 days. On the third day, the

whole group was taken to Mahalape Prison where they stayed for one month and

four days. At Mahalape Prison they were joined by Mishake Muyongo, Chief Mamili

and other individuals of their group on 8 November 1998.

[748] The witness testified that the following persons except Muyongo and Chief

Mamili were with him at Mahalape Prison: John Samboma, Patrick Mwinga, Francis

Mushandikwe, Gilbert Poshowe, Albert Mangilazi, Patrick Toyano, Kenneth

Kacholwa, Desmond Spilanyambe, Patrick Matongo, Ignatius Twabushalila, Oscar

Puteho, Mapenyeho Mushakwa, Jimmy Silitongo, Kenneth Kafufu, Victor

Samaihinga, Fabian Ndozi, Christopher Mushawati, Kester Liselo, and Charles

Lipchipisa. These were the names could recall. The witness testified that from

Mahalapi Prison they were removed to Dukwe, but not all members of the group

were taken to Dukwe, some of them went with Mishake Muyongo. The witness

testified that he was not sure whether they left Mahalapi Prison on 2 nd or 3rd

December 1998.

[749] During cross-examination by Ms Sithole-Mwenda the witness testified that the

group of 92 departed for Botswana on 27 October 1998 and that Albert Mangilazi is

married to his aunt (his father’s sister). It was put to the witness that Albert Mangilazi

was at Kasani and at Dukwe, but not at Mahalapi Prison. The witness disagreed,

stating that from Kasani they moved together to Malahapi Prison and from Malahapi

to Dukwe. The witness stated that he was sure that Mangilazi was at Malahapi

Prison. It was suggested during cross-examination that the accused was substituted

for someone else. The witness denied this.

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[750] Theophilus Kamati testified that he is a member of the Namibian Police and

during the year 2000 assigned as investigating officer to the High Treason

Investigation Team, and was stationed at Grootfontein. He testified that on 19 July

2002 approximately 10h00 he was at the office of the High Treason Unit in Katima

Mulilo busy with preliminary investigations in respect of three suspected rebels, who

had been arrested under the Immigration Act, 7 of 1993. The suspects were

Kacious Mundia Pelekelo, Frederick Ntambilwa, and Albert Mangalazi. These

suspects informed him that they had entered Namibia from Botswana during April

2001. The suspects gave very good co-operation. There were three bags which

were brought from the charge office and he asked them to identify each bag. Each

one of the suspects identified his bag. He asked Albert Mangilazi to open his bag.

Inside the bag was one AK 47 magazine black in colour with 30 live rounds of

ammunition. One brown AK 47 magazine with 30 live rounds of ammunition, a water

container with a yellow cap, a blanket and tablets. Kacious Pelekelo identified his

bag. Inside the bag were a water bottle with water, herbs, a military bag, military

boots (size 10), blankets and tablets. This person informed him that he received

those items from one Manuel Makendano at Makwatale, Masida village. The third

person Frederick Ntambilwa identified his bag. Inside this bag he observed a

blanket, tablets, a military trouser and other items. This person informed him that he

received those items from Manuel Makandano and Patrick Chindo at Makwatale,

Masida. These items were booked in a Pol 7 register under number 45/2002 by

himself. These suspects were arrested by another police officer.

[751] During cross-examination the witness was referred to a statement by Petrus

Itula Shanyengange, one of the arresting officers, where the following was recorded

by the witness as recording officer:

“Albert Mangilazi told me that they were coming from Dukwe, Botswana. He

further stated that they were inside the country Namibia for two weeks. He went

on telling us that they wanted to see an “induna” headman so that they could

report themselves to the Namibian Police as they were apparently fired to be in

the bush.”

[752] Counsel endeavored during cross-examination to show to the witness the

difference between what the accused had allegedly said and that what Frederick

Ntambilwa had said, namely something different, and that the word “they” allegedly

used by Mangilazi was misleading. It was put to this witness that Albert Mangilazi

269

does not know about the items mentioned by the witness that were allegedly found in

his bag, that he never identified items to the witness, that he does not recall the

witness, but the police “were the ones who were telling him that these are your

things”, that there was confusion in respect of the items collected from the three

suspects. The witness replied that counsel’s client was not telling the truth, and that

he (i.e. the witness) never told the suspects which bag was whose bag. It was put to

the witness that there was a confusion and mix up in respect of the bags and the

items. The witness replied: “Not in my presence . . .” The witness agreed that he did

not arrest the suspects on 19 July 2002 and conceded that he handled bags which

had already been handled by other officers. The witness was further taken to task in

respect of Exhibit EJL, the warning statement of the accused, taken down in the

presence of the witness by officer Kombungu, during which the accused was

informed of his right to legal representation to which the accused answered in the

affirmative, but added that he had no money available but that in spite of this reply

they (i.e. police officers) went ahead, questioned the accused and recorded his

answers. The witness eventually conceded that after the accused had indicated that

he wanted legal representation, they should have stopped there.

[753] The accused testified that he was arrested on 18 July 2002 and that he was

charged with contravening the Immigration Act. He testified that he was arrested

along the road while he was on his way to Katima Mulilo police station to report

himself. It was at night and he was alone. He was locked up in cell 6 and was taken

to a certain office the next morning where he was informed by police officers that he

was being charged with high treason and was informed that he was amongst the

group of 92 men who went to Botswana on 27 th October 1998. The accused testified

that he went to Botswana in November 1998. The accused testified that he does not

know the witness Oscar Luware Simbulu, that he never set foot at Sachona as

testified by Simbulu, that he was surprised that Simbulu testified about a name which

is the same as his name, that he is not the Mangilazi Mangilazi referred to by the

witness, that he was at his village Sikaunga, that he has never undertaken a trip with

the witness Michael Mwaswabi Nuwe, that he never cooked for that group, that he

was in Dukwe but never saw Nuwe in Dukwe, that he does not know the witness

Alfred Kupulo Kupulo, that he never boarded a motor vehicle with Kupulo, that he

was not at Sibinda, that Kupulo being a rebel himself accused him of things he did

not do, that he never married the aunt of Kupulo, that he hails from Sikawunga

village which is 135 miles from Liselo, that he does not know the witness Mwisepi

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and has never been with Mwisepi, that he has never advised Mwisepi about

seceding the Caprivi Region or said anything about the barrel of the gun, that he did

not tell the witness Richard Kaulanole Mutanale about a meeting at Sachona, that he

does not know Mutanale, that he did not have a motor vehicle and never took

Mutanale and his younger brother to Kalumba in the bush, that he did not tell

Mutanale anything about registration of names.

[754] During cross-examination by Mr Muluti the accused testified that prior to his

arrest he did not know John Samboma, and never undertook a trip to Angola.

During cross-examination by the State the accused testified that he returned to

Namibia in order to inform the authorities that a “child of Namibia has come back to

his village or his country”. The accused denied that he came back in preparation for

a second attack. The accused admitted that he left Namibia at a place other than a

designated point of exit, admitted that he illegally left Namibia and that he returned to

Namibia at an undesignated border crossing point. It was pointed out to the accused

that counsel did not during cross-examination put it to any of the State witnesses that

the accused could not have been with them because he was at his village

Sikawunga. The witness replied that it was put to Liwate, Nuwe, Kaulanole and

Kupulo. This reply is however not supported by the record.

[755] The accused was asked whether he was aware of the fact that two groups

went to Angola, one group via Singalamwe and the other group via Sachona. The

witness replied he could not confirm or deny it, because he was not there. The

accused denied that he was appointed as a chef at Sachona. The accused denied

that he was at Libyu-Libyu, the accused testified that he could not confirm or deny

that a number of individuals escaped from Libyu-Libyu when a herd of buffaloes had

stampeded through the camp. The accused denied that he was present when a

report was made at Libyu-Libyu that Victor Falali had been killed. It was put to the

accused that the group who took the decision to cross into Botswana was the same

group who had been to Angola, who had been at Sachona, who had been at

Kalumba, and who had been at Sibinda. The witness replied that he could not testify

to things where he was not present.

[756] The accused denied that he was part of the group of 92 who were responsible

for the death of Victor Falali. The accused denied that he was aware of the attack

prior to 2nd August 1999 or that he supported that attack. The accused denied that he

was present. The accused was asked whether he was aware of anybody or any

271

organization who took responsibility for the attack on Caprivi on 2nd August 1999 to

which the accused replied that he does not know. It was put to the accused that his

defence to the evidence tendered against him is that he knows nothing about it. 169The accused agreed. It was put to the accused that it was never during cross-

examination put to the State witness that he was at his village Sikawunga, but what

was put to witnesses was that their testimonies were ‘factious’ and ‘imaginations’;

the accused agreed.

[757] The accused confirms that he testified that he does not know the State

witnesses. The accused testified that he did not know any of his co-accused prior to

his arrest, that he only saw Geoffrey Mwilima in newspapers because he was a

parliamentarian. The accused testified that he never met any of his co-accused in

Dukwe. The accused testified that he left Namibia because he was assaulted by

police officers, but does not know who those ploce officers were, or the reason why

they had assaulted and threatened him at his courtyard at Sikawunga. The accused

stated that he is unable to say who the police officers were, i.e. was not able to

differentiate, just saw them in uniform.

[758] The accused was reminded that counsel had put it to the witness Mwisepi that

the reason why the accused went to Botswana was because he was harassed left,

right and centre by the Special Field Force. It was further pointed out that he did not

testify in his evidence-in-chef what was put by counsel to Mwisepi. The accused

replied that he did testify about it. The accused is not supported by the record in this

regard. The accused testified that he gave such instructions to counsel, but could

not differentiate whether they were indeed from the Special Field Force. The

accused testified that he left Dukwe on 17th July 2002, that he did not inform the

authorities there, because he was homesick. The accused testified that he could not

inform the authorities in Botstwana because at that stage the repatriation had been

stopped.

[759] The testimony by Kupulo that the accused got on to the motor vehicle at

Liselo school, that they moved to Kalumba, and from there to Sachona, then moved

to Linyanti and thereafter to Libyu-Libyu was never specifically disputed during

cross-examination. Defence counsel expressed her believe that because the witness

knows the accused very well he could have replaced the person who jumped onto

the vehicle with the name of the accused, similarly replaced an unknown person who

169 P 37961 lines 9-11

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allegedly was a group leader at Sibinda and Kalumba with the accused. This counsel

submitted was done because the witness was not good at remembering faces. The

witness’s answer was that it was impossible for him that he could have forgotten the

identity of a person who was married to his father’s sister. This, namely that the

accused was married to the aunt of the witness, was never disputed during cross-

examination and I must therefore accept that at the stage when the witness was

cross-examined this was not an issue in dispute. It was thus not an issue in dispute

that the witness knows the accused very well. The denial by the accused during his

testimony in chief that this was not the case is self-serving because it fits in with his

testimony that he did not know Kupulo prior to his arrest.

[760] I have (supra) discussed the consequences at the failure at a party to put his

case to opposing witnesses and need not repeat same. It suited the accused to

remove himself from the village of Liselo to some other place because it was testified

that the accused stayed near a church. In Exhibit EJL, a warning statement, the

accused, stated that he stayed in Liselo village. This was never disputed during

cross-examination. The accused during his evidence-in-chief testified that he never

saw the witness Nuwe in Dukwe. This evidence however is contradicted by what was

put to Nuwe during cross-examination namely: “Albert will say he was never in

Sachona only saw you at Dukwe for the first time”. The denial of the accused that he

had ever saw Nuwe at Dukwe fies in with his defence of a bare denial of

incriminating evidence against him. It however appears that the accused was not

truthful by denying that he had never seen Nuwe at Dukwe.

[761] If the evidence at Kupulo is accepted that the accused was with the group as

testified by Kupulo it follows (though this was denied during cross-examination) that

the accused must have been at Malahapi Prison in Botswana. The testimony by the

accused that he does not know the state witnesses, if true, does not explain how

these witnesses were able to correctly identify the accused in court. The only

explanation in my view for this fact, is that the accused was known to the witnesses,

in spite of his denial. The submission by Mr Kachaka in his heads of argument that

the witnesses who identified the accused were able to do so with the assistance of

Exhibit BAR, lose sight of the fact that the accused was very well known to the

witness Kupulo, and that Kupulo certainly would not have needed the assistance of

photographs in order to identify the accused person. The same applies in respect of

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the witness Nuwe who testified that he knew the accused because they were

together in the Army.

[762] This Court must approach the evidence of the witness who had identified the

accused with caution since all four of them were accomplices or co-perpetrators, as

correctly submitted by counsel. This does however not mean that their testimonies

must be disregarded. The response by the accused to their testimonies is that those

testimonies were fabrications and denied any involvement in the events as testified

by the witnesses. I am aware that the accused has no onus to prove his innocence.

I have however referred to evidence which I regard as uncontested by the accused

during cross-examination in particular the evidence of Kupulo that the accused was

part of the group of 92 men who crossed the river Chobe with weapons of war. The

accused was evasive during cross-examination 170he contradicted himself, and did

not deny during his evidence-in-chief that two AK 47 magazines with 60 rounds of

live ammunition were found in his bag.

[763] It was put to police officer Kamati during cross-examination that there was a

confusion and mix up of bags. Kamati conceded that this could have been the case

but was sure this never happened in his presence. The accused took his defence of

a bare denial to a different level when during cross-examination he could not recall at

all whether he had appeared in court in Botswana on charges of contravening

immigration laws. The reason for this loss of memory according to the accused was

that if it happened, it occurred a long time ago. Appearing in a court of law is not an

experience one would easily forget especially when such appearance was in a

foreign country. The accused testified that he could not recall much on event

because it occurred a long time ago, but ironically, he is adamant that other events

which also occurred a long time ago, did not occur as testified by the State

witnesses.

[764] During cross-examination when the accused was questioned why he

specifically chose Botswana and not another country, for example Zambia, in order

to escape from the alleged harassment by members of the Namibian Police Force,

the accused ascribed his choice to divine revelation.

[765] I am of the view, having considered all the evidence presented that the

testimony of the accused is not reasonably possibly true in the circumstances. I am

170 See one example on p 37936-37937.

274

further satisfied that the evidence presented by the State beyond reasonable doubt

and I am satisfied that the only inference to be drawn is that the accused had the

required hostile intent.

Clients of Mr Nyoni

Osbert Mwenyi Likanyi (accused no.57)

[766] Walter Mwezi Sikochi testified that he observed Osber Likanyi at Makanga

bushes prior to the attack on Katima Mulilo and identified Osber Likanyi as accused

no.57. During cross-examination by Mr Nyoni, it was put to this witness that

education was not really on his programme when he left for Botswana, the witness

replied: ‘It can be’. The witness testified that on 31st July 1999 at night he was

collected by five individuals of whom one was armed; that he was collected for the

purpose of war; that at Makanga he met his brother Herbert Mutahane and his

friends but that he never asked what was going on; that there was ample opportunity

for him to escape from Makanga; that he did not know what was going to take place

at Makanga; that he submitted himself to treatment by a witchdoctor; that he never

asked what the purpose of the treatment was; that Chainda told him that their

agenda was to fight the government; that when he submitted himself to the treatment

he knew exactly what was to be done that evening; that he decided to fight after he

had heard a speech by Shadrack Chainda; and that he was positioned near the

storeroom at Mpacha military base.

[767] The witness agreed that when he was asked during his testimony in-chief-

testimony to ‘list’ those persons who were with him at Makanga, he did not mention

Osbert Likanyi and that he only mentioned Osbert Linkanyi the next day after the

court had adjourned; that he had seen Osbert Likanyi from a distance at Makanga,

but did not have a conversation with him; that the name of Osbert Likanyi was on a

list the police had; that he was not mistaken when he observed Osbert Likanyi at

Makanga; that Osbert Likanyi was married to Erika Silubanga (deceased) who was

the cousin of the witness. It was put to the witness that it was impossible for Osbert

Likanyi to have been at Makanga, the witness disagreed.

[768] Michael Maswabi Nuwe testified and identified the accused as one of the

refugees at Dukwe refugee camp. He testified that he (ie himself) escaped from

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Dukwe together with other persons on 10 April 2001, including Osbert Likanyi and

returned to Namibia. Osbert Likanyi was leading the group. This witness testified

about their wanderings inside the Caprivi Region moving from one place to another

in order to evade the security forces and that the purpose of this group was to initiate

a second attack in the Caprivi Region. The witness testified that the accused was in

possession of an AK47 at Masokotwani. Osbert Likanyi also provided food, khaki

uniforms, trousers and boots to them. The witness testified that they were arrested

on Sunday 16 July 2001.

[769] During cross-examination by Mr Nyoni, the witness agreed, on the

assumption that Osbert Likanyi was with the group, that their main activity was

camping and conceded that no person was injured and no building was damaged. It

was put to the witness that the accused did not leave Dukwe together with the

witness. The witness disagreed.

[780] Oliver Munyandi Mbulunga testified that on 2 October 1998 during the

evening Thaddeus Ndala arrived at the outskirts of his village Singoweka and sent

Osbert Likanyi to fetch him. According to this witness, Osbert Likanyi informed him

about a DTA meeting the next day at Ngwezi. He agreed and accompanied Osbert

Likanyi to a motor vehicle where he found other individuals. There was no meeting.

The next day, he was transported with others to Singalamwe where John Samboma

told them that they were going into Angola in order to get assistance of a military

nature. The witness testified that he was part of the group of 92 who entered

Botswana and that Osbert Likanyi was one of the members of that group.171 During

cross-examination by Mr Nyoni, the witness testified that on 10 May 2002, he

appeared in court on charges of unlawfully departing from Namibia and of unlawfully

entering Namibia, was convicted and sentenced. The witness conceded that Osbert

Likanyi was a messenger when he was sent to fetch him at the village and that he

and Osbert Likanyi were seriously misled.

[781] The witness was then referred to the testimony of Nuwe who testified that

from the time they were at Mosokotwani until their arrest on 16 June 1999, all they

did was simply camping. The witness agreed; the witness agreed that he did not

leave Dukwe camp with Osbert Likanyi adding that they left at different times. During

171 P. 3205/6

276

re-examination, the witness testified that he did not know what Osbert Likanyi was

thinking when he informed him about the DTA meeting. The witness testified that he

was ‘not aware whether he (Osbert) was also in that group” which went to Angola

and Zambia.

[782] John Mulanli Mwabela testified that on 1st August 1999, Osbert Likanyi arrived

at his village Kansoko and escorted him under arms to Makanga bushes. This

witness was unable to identify Osbert Likanyi in court. Given Lufela Ndugati testified

that during the night of 31st July 1999 one Adams Muyumbano collected him from his

village and forced him to Makanga bush. The next day, they were divided into groups

and his group was assigned to attack the police station. He testified that one Osbert

Likanyi was armed and also in this group. The witness was unable to identify Osbert

Likanyi in court.

[783] Theophilus Kamati testified that he is a Detective Chief Inspector in the

Namibian Police and was part of the investigating team in this case. On 6 December

2002, he accompanied the Regional Commander Chief Inspector Goraseb to Ngoma

Police Station. They preceded to the Botswana Immigration offices where they met

members of the Botswana police. Three individuals were handed over to them

namely Boster Samuel Mubyata, Alex Mafwila and Osbert Likanyi Mweti. These

three individuals identified themselves. On 7 December 2002, he drove to Ngoma

Police Station in order to conduct an investigation to see whether the suspected

persons can be linked to the crime of high treason or whether they just went to

Botswana illegally.

[784] During the evidence-in-chief of this witness he testified that he had explained

the right of legal representation to Osbert Likanyi, that he was entitled to legal aid

and that he has the right to remain silent. The witness testified that Osbert Likanyi

chose not to remain silent and that when he heard his rights, he just started talking.

At this point, the prosecutor, Mr July, informed the court that he was at the proverbial

cross-roads and was not sure whether he could proceed to the next step of the

enquiry into what the contents of the discussions were. This Court informed Mr July

that since the State relies on a waiver of his rights by the accused person, there

must be a clear waiver of his rights by the accused and that I doubted whether that

threshold had been passed. Mr July then tried to lead the witness in respect of the

277

contents of the discussion he had with Osbert Likanyi to which Mr Nyoni objected. Mr

July then led the witness in respect of what had happened after this witness had

discussions with the individual Osbert Likanyi. It must be stated that anything which

Osbert Likanyi had allegedly said to this witness incriminating himself in respect of

the charges preferred against him, would be an inadmissible admission or

inadmissible confession because on 10 December 2002, the witness was a warrant

officer, and cannot be relied upon as evidence against the accused. There is in any

event no evidence that the accused understood what was explained to him. This

witness was not cross-examined by Mr Nyoni.

[785] Oliver Simosika Chunga and Chrispin Khama Shaweke both testified and

incriminated Osbert Likanyi. However, both these witnesses failed to identify the

individual referred to as Osbert Likanyi as any of the accused persons before Court.

The accused testified that he was employed as a police officer based at Katounyana

for a period of six years and that he was discharged when he refused a transfer to

Windhoek. The accused testified that he went to Botswana because the police and

soldiers came to his village and assaulted him and he eventually arrived at Dukwe.

[786] The accused stated that he never travelled to Angola and was never at

Sachona or Libuye-Libuye rebel camps. The accused testified that he left Dukwe on

6th November 2002 with a permit in order to look for piece work. He arrived in Kasani

where he spent the night. The next morning, on his way to Muwana Lodge, he was

arrested, taken to Kazungula and was taken to Kasani the next day where he stayed

from 7th November 2002 until 6th December 2002. The accused admitted that when

he left for Botswana, he entered Botswana through an ungazetted point. The

accused testified that he never went back to Dukwe after he had left the place. It

would have been difficult to do so according to him because the police had

confiscated his permit. The accused testified that on 2 August 1999, he was in

Dukwe. He denied that he left Dukwe on 10 April 2001 for the Caprivi in order to

initiate a second attack.

[787] The accused was reminded172 that both, Nuwe and Mulonga, testified that he

was their leader in preparation for a second attack in Caprivi Region. The accused

denied this. The accused testified that after his arrest, he never made a statement to

172 P.38911

278

the police and never applied for bail. The accused testified that no evidence was led

to substantiate an allegation in the further particulars that he was involved in an

attack on the police station in Katima Mulilo. During cross-examination, he was

asked whether he agreed that the first time he had volunteered information as to why

he was against allegations that he was at Libyu-Libyu. The accused disagreed,

stating that the person, one Mwanalushi, who was supposed to testify about that did

not do so when he was in Court.

[788] The accused testified that during June 1998, he was at home at Nanyanti

village. The accused testified that he joined the DTA in 1987 and was a member of

no other political party. The accused then explained that the reference in an affidavit

that he was a member of the UDP is wrong and that he had informed counsel about

it. The accused testified that he does not know why it appears in the affidavit that he

resides in the village of Kapani. The accused was asked whether he was aware that

many allegations in this trial were concerned about the existence or non-existence of

the UDP and the accused agreed. The accused was asked why was it that he

referred to the mistake in his affidavit only for the first time during cross-examination.

The accused replied that he did not know that his affidavit would be brought into this

trial. These mistakes were never rectified.

[789] The accused denied belonging to the UDP, adding that he knew about it in the

year 1985, but was not aware of its existence in 2003. The accused testified that he

was a branch secretary of the village in the DTA. The accused testified that the two

mistakes he referred to were the only mistakes which appeared in his affidavit. The

accused testified that he voluntary left Dukwe. The accused testified that he was

arrested in the bush by the Namibian Police (in the presence of the Botswana Police)

and testified that Chief Inspector Kamati explained to him at Ngoma Police Station

that he was arrested for high treason, something which he did not understand. The

accused agreed that he did not testify about this incident previously.

[790] The accused was referred to his affidavit deposed to on 13 May 2003 (Exhibit

EWJ) in which he stated as follows:

‘I was based at Dukwe Refugee Camp. I was then taken from Dukwe to Kasani

Prison and from there I was taken to Kazungula Boarder (sic) Post. At Kazungula, I was

279

forcibly and unlawfully arrested by the Namibian Police. At the time of the arrest, I was still at

the hands of the Botswana Prison Officers. When the Namibian Police tried to get me, I

refused. They then used force.’

[791] The accused replied that ‘they have just mixed it up’. The accused confirmed

that he signed the statement. A commissioner of oaths certified that the deponent

(accused) has knowledge, that he knows and understands the contents of his

affidavit, which was SIGNED and SWORN TO before the Commissioner at

Grootfontein on this 13 May 03’.

[792] The first sentence of paragraph 3 of Exhibit EWJ reads as follows: ‘I am a

member of the United Democratic Party’. The accused testified that no warning

statement was taken by police officer Kamati; that Kamati wanted him as a witness

and he refused. The accused testified that during his interaction with police officer

Kamati there was no assault on him, neither did police officer Goraseb assaulted

him. The accused testified that he had never been to Libyu-Libyu, Singalawe or

Sachona. The accused testified that he did not now Olivier Chunga prior to Chunga’s

testimony, but knew Michael Nuwe and Walter Sikochi. The accused testified that on

1 August 1999 he was in Botswana and could not have been at Makanga.

[793] The accused testified in relation to the invitation to attend a DTA meeting that

he was never misled by any body and that he never gave any instruction to counsel

that he was misled. The accused testified that the witness Walter Sikochi is the

cousin of his wife and that he knew Sikichi since 1981. The accused testified that

Sikochi had pointed him out because he (ie the accused) had lived with him for quite

a long time and not because he did something wrong. The accused testified that

Sikochi was mistaken when he pointed him out as having been at Makanga and that

Sikochi did not mention his name. When the accused was asked why the evidence

of Nuwe to the effect that the accused was in possession of an AK 47 at

Masokotwani was never challenged, he replied that it was ‘fabricated evidence’.

When it was put to the accused that it was the first time for him to testify about a

fabrication, the accused replied that it was his first time to be in the witness box to

answer those allegations. The accused testified that the whole evidence of Nuwe

was a fabrication.

280

[794] The accused admitted that there was an attack and that people died. The

accused testified that he cannot deny that 92 individuals gathered at Libyu-Libyu.

The accused testified that he could not dispute that the group of 92 at Libyu-Libyu

was responsible for the killing of Victor Falali, adding that one Kupulo shot Falali.

The accused agreed that no instruction was put to Kapulo that he shot Falali. The

accused testified that he spoke to Oscar Mwisepi at Dukwe and that Aggrey

Makendanno (accused no 11) had informed him on 6 August 1999 in Dukwe

Refugee Camp that he (ie Makendano) would be leaving on 6 August 1999 for

Maun, and that he missed Makendano on 9 August 1999. The accused denied that

he was in Katima Mulilo during the attacks on 2 August 1999. The accused testified

that he received training as a police officer in the use of handguns and do not know

how to operate an AK 47 or a R1-rifle. The accused was referred to Exhibits EGO1,2

and 3 (a translation of inscription on an exercise book) in which the following

appears: ‘At Kapani all men are in possession of this type of firearm AK 47 / R1.

Those who know and can confirm about these firearms are those in the bush which

men came from the same village 1. Mr Osbert Likanyi 2. Mr Francis Lifalaza’, and

was asked for his comment. The accused replied that it was a fabrication and denied

knowledge thereof. The accused testified that he was on his own when he left for

Botswana and was not part of the group of 92. The accused was reminded of

evidence led in court that Aggrey Makendano was the leader of the group who

attacked the police station in Katima Mulilo. The accused confirmed that he heard

such evidence. The accused was asked would he be surpriced if it is reflected that

the second in command was a person by the name of Osbert Likanyi to which the

accused replied that he would not, since it does not refer to him.

[795] It was further put to the accused that that is the reason why he testified that

he saw Makandano in Botswana, whereas evidence indicates that he was part of the

group which attacked the police station on 2 August 1999. The accused replied that

Sikochi testified that he left Makendano in Botswana and that Sikochi told the truth.

Mr Nyoni in his heads of argument submitted that the accused person was not part

of a group that went to Angola and Zambia and subsequently to Botswana. The

State witness Mbulungu testified about an incident that under the pretext of attending

a DTA meeting he arrived at Singalawe where they were told about a trip to Angola.

This witness when asked, whether the accused was amongst those who went to

Angola via Zambia, replied that he could not remember since the events took place a

281

long time agao. I agree that there is no evidence that the accused was amongst this

group who went to Botswana. Mr Nyoni further submitted that the accused is not

linked by any witness as having been in the alleged group of 92 at any of the rebel

camps and where and when he is alleged to have joined the group of 92 has not

been proved.

[796] There was however a State witness ie Olivier Mbulungu who testified173 that

he himself was in the group of 92 and identified the accused to be part of the group.

This evidence was not challenged during cross-examination and stands

uncontradicted. The submission by Mr Nyoni that Mbulungu must have been

mistaken the accused for someone else when he observed the accused at Kasani

Prison since the testimony of the accused is that he was on his own when he left for

Botswana, did not take into account the uncontroverted evidence of Mbulungu that

the accused was indeed part of the group of 92. Mr Nyoni further criticized the

testimonies of Nuwe and Mbulungu, inter alia, because they were silent as to how

and where and in what circumstances the accused was elected as leader of the

group and that there is no allegation that they were informed that they would be led

by the accused. Mr Nyoni further submitted that the plan to mount a second attack is

so imaginary and unrealistic that Michael Nuwe conceded that it was nothing but a

dream. This concession by the witness cannot be considered to be a concession that

the testimony of this witness was nothing but an imagination. Although it was denied

that the accused was part of a group that left Dukwe with the aim to mount a second

attack, it was never denied during cross-examination that the accused was in

possession of an AK 47 at Masokotwani and that he provided uniforms, clothes and

foof to his companions in the bush.

[797] Mr July submitted that in Exhibit EG02, authored by a co-conspirator, the

accused was referred to as being a person at Kapani who was in possession of a

fire-arm and that this evidence is admissible against the accused person. The reply

by the accused that it was a fabrication begs the question why the author (Brian

Mboozi) had mentioned his name. Mr Nyoni criticised the evidence of Sikochi as

unreliable, since he was an accomplice who had tendered his witness statement

under threat; that he was a witness who unjustifiably felt forced to make dock

identification; was an accomplice who was not open and honest with the court about

173 P 3206.

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why he set out from Namibia to Botswana; that the truth of the matter may lie in an

unguarded statement that he followed Muyongo to Botswana; that he was an

accomplice who was not open and honest how he got to the Makanga bushes; that

he contradicted himself about his decision to be part of the CLA. I agree with this

summary. In respect of his presence at Makanga, the witness at first tried to create

the impression that he was escorted to Makanga under duress, however it appear

later from his testimony that he was a willing participant. I am of the view that his

testimony in respect of the identification that the accused was seen by him at

Makanga should be approached with caution especially in view of the fact the scene

was mobile, with many people in the bush, and the witness did not communicate with

Osbert Likanyi. This witness, as correctly submitted by Mr Nyoni, was a self

confessed corrupt individual who subsequently became a police officer. I shall

therefore exclude his evidence to the effect that he had seen the accused at

Makanga.

[798] The submission by Mr Nyoni that the State’s submissions in their heads of

argument that the accused revealed that he was a rebel on 4 November 2002 was

quite mischievous and incorrect. I agree. I have alrady indicated that such evidence

in inadmissible and excluded. I however disagree with the submission by Mr Nyoni

that the testimony of the accused was unshaken. There are some material

contradictions. The accused testified that he was a member of only the DTA. His

explanation that he stated on Exhibit EWJ that he was a member of the United

Democratic Party and that this was a mix up is implausible. The accused is an adult

and an intelligent person and his testimony that this court should believe him when

he denied membership of the UDP should be rejected. The question why the

accused would so strongly deny any connection with the UDP is to be found during

cross-examination when the accused admitted that many allegations in this trial were

concerned about the existence or non-existance of the UDP. The evidence of the

accused that he was not aware of the existence of the UDP during 2003 is

contradicted by himself in Exhibit EWJ.

[799] The testimony of the accused that Aggrey Makandano (accused no 11) was in

Dukwe Refugee Camp as late as 6 August 1999 is in contrast with the evidence that

accused no 11 was inside Namibia at the stage. The journey of the accused from

Dukwe to Namibia as testified to by the accused is contradicted by what is contained

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in his affidavit (Exh. EWJ). In this Court, he testified that he voluntarily left Dukwe

and was arrested next to the road on his way to Muwana Lodge. In Exhibit EWJ the

accused stated that he was taken from Dukwe to Kasani prison and from there to

Kazangula border post where he was unlawfully arrested by the Namibian police.

The implication is clear, namely, that he did not voluntarily leave Dukwe. The

accused then gave a third version namely that he had been arrested in the bush by

the Namibian police in the presence of the Botswana police. The accused denied

deposing to a witness statement however Exhibit EWK was handed in as a witness

statement deposed to by the accused person on 10 December 2002.

[800] The accused was an untruthful witness. I have indicated that the evidence

that he was part of the group of 92 was never challenged and must be accepted as

uncontroverted evidence. The evidence of Nuwe supports the evidence of Mbulungo

about an excursion in the bush with the accused and their attempts to evade the

security forces. Further support that the accused was actively involved in the attempt

to secede the Caprivi is to be found in Exhibit EGO2. The denial by the accused of

any involvement in the attempts to secceded the Caprivi region is in view of the

totality of the admissible evidence referred to hereinbefore not reasonably possibly

true and is rejected as false. I am accordingly of the view that the State has

succeeded in proving the commission of overts acts and that the accused had the

required hostile intention.

Gabriel Nyambe Ntelamo (accused no.88)

[801] Bernard Bareka Kanzeka testified about two meetings he had attended during

the year 1998. The first meeting was during November 1998 addressed by Geoffrey

Mwilima and the second meeting during December 1998 chaired by Muyongo. A

more detailed version of the testimony of this witness has been dealt with.174 It was

submitted by Mr Nyoni that the alleged events which took place at the DTA offices in

Katima Mulilo in November 1998 was recorded by the police in the statement of this

witness on 16th March 2001. In that statement, Gabriel Ntelamo was not mentioned

as one of the persons who allegedly attended that meeting and this fact was

174 Supra.

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conceded by Kanzeka. This court was referred to the record where the following

appears:175

‘In your statement do you agree that you never mentioned that Gabriel Ntelamo was

one of the persons who attended the first meeting?...

Yes, My Lord.’

And continued176:

‘And I am prepared to give you the benefit that you could have been mistaken in

including him in that meeting?...

It’s correct, My Lord.’

[802] It was submitted by Mr Nyoni that this meeting was addressed by an

individual whose identity remains unknown to this Court since Geoffrey Mwilima was

not identified by this person in court. I must say that it is immaterial whether the

identity of the speaker at the meeting was known or not because in a charge of high

treason, an accused may be convicted if he had knowledge of treasonous activities

and failed to report that to the authorities. In the present instance, it is thus not

necessary by the State to prove the identity of a speaker at a meeting. I have found

(supra) that the second meeting (during December) testified to by the witness

Kanzeka could never have been addressed by Muyongo since at that stage, he was

already in Botswana. With reference to the testimony of Shailock Sitali Sinfwa, it was

submitted that the accused never offered his vehicle to transport people to

Botswana. The record reflects the following177:

‘Then he informed me My Lord, that if there are certain people that I have found, who

are prepared already to go to Botswana I should bring them to him and transport was not a

problem because he was going to use the vehicle of his elder, Gabriel Ntelamo, My Lord.’

[803] It was submitted by Mr. Nyoni that this conversation took place between

Leonard Ntelamo and the witness Sinfwa and that Gabriel Ntelamo was not linked to

the discussion, at all. I agree that the reference to Gabriel Ntelamo is no proof at all

that the accused had availed his vehicle for transporting persons to Botswana.

175 P.6121 lines 7-9176 At p.6121 lines 10-13177 P.5171 lines 21-2 to 5172 lines 1-3

285

[804] Progress Munsu Mulonga testified and I have already referred to his

testimony. During cross-examination by Mr Nyoni, the witness confirmed that he

attended three meetings during the year 1998. The first meeting was held in

Kasheshe and addressed by John Mabuka, the second meeting at the DTA office

addressed and chaired by Mushanana, and a third meeting called and addressed by

Geoffrey Mwilima. The witness testified that no meeting which he had attended was

addressed by Muyongo. The witness in his first two statements had never informed

police officers that people raised their hands in agreement with the idea of

secession. The witness conceded that in his third statement the police drove to his

village and he deposed to a statement three years after he had deposed to the first

statement, in which statement the police had put in the issue of the raising of hands.

It was put to the witness that the accused will deny that he attended any meetings

with the witness to which the witness replied that he had personally seen the

accused at the meeting in Katima Mulilo. It was submitted by Mr. Nyoni that

Mulonga’s testimony lacks credibility and is unreliable. It was submitted by Mr. Nyoni

that Mulonga portrayed himself as a saint, yet evidence depicted him as an active

secessionist. Reference was made to his testimony that the issue of secession was

not palatable to him and that he never associated himself with the ideas of secession

proposed at the meetings. It was submitted that the witness testified that he did not

do anything in common purpose with those who propounded the idea of seceding

the Caprivi yet a state witness police officer Emo Dumani Popyeinawa unveiled him

as an active secessionist and that this destroyed the credibility of this witness.

[805] Mr. Nyoni further submitted that his testimony contains fundamental

contradictions. In evidence-in-chief, he testified that a meeting that he had attended

in 1998 addressed by Muyongo, Muyongo had informed those in attendance that he

had left Parliament to stand on his own in Caprivi because the people in Caprivi were

suffering and declared that the Caprivi should be cut from the rest of Namibia by the

barrel of the gun. It was at this meeting according to Mulonga that those who

attended raised their hands to show support and thereby associating themselves

with what was said. However, subsequently, his testimony under cross-examination

Mulonga asserted that no such meeting took place.178 The witness conceded that

Muyongo did not address any of the meetings testified to by this witness. In respect

178 P.6866

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of the testimony of Kanzeka, what is apparent is the concession made that he could

have been mistaken that the accused attended that meeting during November 1998.

[806] In respect of the evidence of Sinfwa, I have indicated that the evidence does

not establish any proof that the accused had provided his vehicle to transport

persons to Botswana and that he was aware of the purpose of such journey. The

criticisms pointed out by Mr. Nyoni in respect of the testimony of the witness

Mulonga has merit in my view. His testimony must be approached with caution in

particular his evidence that the accused attended a meeting at the DTA office where

he had raised his hand in agreement to the proposal to secede the Caprivi from the

rest of Namibia.

[807] The accused testified that he is a qualified teacher and was the principal at

Kwena school, that he was a member of TUN which was affiliated to the DTA and

that he was not involved in the politics of the DTA except for attending rallies in

1998; that he knew Mishake Muyongo as a member of parliament; that he was not

aware of the idea of seceding the Caprivi; that he attended one DTA meeting in

1989; that he knew about the UDP which was formed by Muyongo was affiliated to

the DTA but does not know whether the UDP was operative during the years 1996-

1998; that he never associated himself with the UDP; that he did not know the

witnesses Kanzeka and Progress Mulonga; that he knew Geoffrey Mwilima but never

discussed politics with him; that Kanzeka implicated him because Kanzeka was

arrested and opted to be a witness; that his defense against the allegations is that he

did not attend the alleged meetings and did not provide any transport or in any way

assisted to seccede the Caprivi from Namibia; that prior to his arrest, he was not

aware of the CLA; that he was alone at his school.

[808] I am of the view that the accused was not discredited during cross-

examination to the extent that his defense should be rejected as not reasonably

possibly true. I am of the view that the evidence presented by the State failed to

prove the commission of any of the preferred charges against the accused person.

Admissibility of the deployment list

287

[809] Mr July has in his heads of argument as well as during his submissions made

in court, referred this court to and relied upon an exhibit referred to as a deployment

list in which names similar to that of some of the accused persons appear and where

the institutions to be attacked were also mentioned. During my ruling in the s 174

application I found that this exhibit was admitted provisionally and could not be used

by the court for consideration at that stage. Mr July contended that the exhibit had

indeed been finally received by this court and that it was proved by handwriting

experts that the author of that exhibit was one David Mubone who according to the

witnesses had on 1st August 1999 and at Makanga recorded the names of persons

present at Makanga on a piece of paper.

[810] It was argued by Mr July that since that exhibit (subsequently) marked Exhibit

EGK (1) is an exhibit properly before this court, this court should consider it as

evidence against the accused persons at this stage of the trial. The implication is that

this Court had erred when it was not considered during the s 174 application

judgment. It was submitted, inter alia, by Mr Nyoni, that to do so would render this

trial unfair in respect of the accused persons and this court was referred to the

applicable authority in this regard.

[811] It is necessary also to refer to the submission by Mr July in respect of a

number of confessions which this court had found to be inadmissible after trials-

within-a-trial, that since a finding in a trial-within-a-trial is interlocutory in nature that

this court may reconsider its findings at this stage. It was submitted that in view of

evidence presented subsequent to the ruling in the trials-within-a-trial, to the effect

that the deponents to those confessions were at the time they had made their

confessions to the magistrate, well aware of their entitlement to legal aid, and urged

this court to find the confessions as admissible evidence against those accused

persons. The question is whether this court should be amendable to consider these

submissions in respect of Exhibit EGK (1), the deployment list, the confessions, or

whether it would be unfair to do so, as admitted by Mr Nyoni.

[812] In S v Ndhlovu and Others179, Cameron JA expressed himself as follows:

‘[18] Third, an accused cannot be ambushed by the late or unheralded admission

of hearsay evidence. The trial court must be asked clearly and timeously to consider

and rule on its admissibility. This cannot be done for the first time at the end of the

trial, nor in argument, still less in the court’s judgment, nor on appeal. The 179 2002 (2) SACR 325 (SCA) at 338.

288

prosecution, before closing its case, must clearly signal its intention to invoke the

provisions of the Act, and, before the State closes its case, the trial Judge must rule

on inadmissibility, so that the accused can appreciate the full evidentiary ambit he or

she faces.’

[813] In S v Molimi180, Nkabinde J stated the following, which is the answer to the

question posed, in my view:

‘[42] This court has said that the right to a fair trial requires a substantive rather

than a formal or textual approach and that “it has to instil confidence in the criminal

justice system with the public, including those close to the accused, as well as those

distressed by the audacity and horror of crime”. It is not open to question that a ruling

on the admissibility of evidence after the accused has testified is likely to have an

adverse effect on the accused’s right to a fair trial. It may also have a chilling effect

on the public discourse in respect of critical issues regarding criminal proceedings.

More importantly, proceedings in which little or no respect is accorded to the fair trial

rights of the accused have the potential to undermine the fundamental adversarial

nature of judicial proceedings and may threaten their legitimacy. There are further

adverse consequences. For example, when a ruling on admissibility is made at the

end of the case, the accused will be left in a state of uncertainty as to the case he is

expected to meet and may be placed in a precarious situation of having to choose

whether to adduce or challenge evidence.’

[814] I agree that in such an instance an accused person would suffer trial

prejudice. It will certainly be unfair and as pointed out in Molimi at para [54] of that

judgment that the right of an accused at all important stages to the ambit of the case

he or she has to meet goes to the heart of a fair trial. Whether this court had erred in

disregarding Exhibit EGK (1) during the s 174 application judgment, is immaterial at

this stage. This may be a point to be argued on appeal.

[815] In respect of the confessions ruled inadmissible during the trial, the State

should have, before the conclusion of its case applied to court to reconsider its ruling

in respect of those confessions. To do so at this late stage would, in my view, be

tantamount to an ambush, and would certainly render the trial unfair.I therefore, for

these reasons, decline to reconsider my findings in respect of Exhibit EGK (1) and in

respect of the relevant confessions.

180 2008 (2) SACR 76 (CC) para 42.

289

[816] I have for these reasons came to my findings without considering Exhibit EGK

(1) and the confessions in respect of my evaluation of the evidence against the

accused persons already dealt with, and shall also not be considering those

documents in respect of the accused persons still to be dealt with. I must state that

Mr McNally in respect of his client, Mathews Pangula (accused no 59), made a

similar submission in respect of a confession admitted as evidence against the

accused person. For the reasons mentioned I refused to reconsider my finding in

respect of that accused person.

Accused persons who did not testify: Principles on failure to give evidence

[817] I shall now deal with those accused person who elected not to testify in their

own defence. However, before I do so, I need to consider the apporopriate

approach, in considering whether or not the State has succeeded to discharge the

onus to prove the commission of an offence beyond reasonable doubt. Under our

common law the effect of a failure to testify by an accused would depend on the

circumstances of a particular case. In S v Mthetwa181 it was explained as follows:

‘Where the state case against an accused is based on circumstantial evidence and

depends upon the drawing of inferences therefrom, the extent to which his failure to give

evidence may strengthen the inference against him usually depends on various

considerations. These include the cogency or otherwise if the state case, after it is closed,

the case with which the accused could meet it if innocent, or the possibility that the reason

for his failure to testify may be explicable upon some hypothesis unrelated to his guilt. . . .

Where, however, there is direct prima facie evidence implicating the accused in the

commission of the offence, his failure to give evidence, whatever his reason may be for such

failure, in general ipso facto tends to strengthen the State case, because there is then

nothing to gainsay it, and therefore less reason for doubting its credibility or reliability . . ..’

[818] With the advent of the Constitutional order the question whether the rules in

Mthetwa are compatible with an accused’s constitutional right to silence and right not

to be a compellable witness against himself or herself, arose and was considered in

S v Brown182 by Buys J. A five-part answer was given and summarized by

Schwikkard Van der Merwe as follows183:

1811992(3) SA 766 (A) at 769 A-E(Emphasis in original) 182 1996 (2) SACR 49 (NC)183 Principles of Evidence 2nd Edition p 511-512

290

1) “No adverse inference can be drawn against an accused merely by virtue of the

fact that he has exercised his constitutional right to refuse to testify.”

2) If an accused exercises his constitutional right to silence, the court is left with

nothing but the uncontroverted prima facie case presented by the state: the

silence of the accused has no probative value.”

3) It follows that the court is really only called upon to decide whether the

uncontradicted prima facie case of the prosecution must harden into proof

beyond reasonable doubt.”

4) The accused’s constitutional right to silence cannot prevent logical inferences:

the circumstances of a case may be such that a prima facie case, if left

uncontradicted, must become proof beyond reasonable doubt. This happens

not because the silence of the accused is considered an extra piece of

evidence but simply because the prima facie case in a particular case is in the

absence of contradictory evidence on logical grounds strong enough to

become proof beyond reasonable doubt.”

5) If the accused’s silence is, in the assessment of the prosecution’s

uncontroverted prima facie case, neither treated as “evidence” nor as a “factor”,

then it can hardly be argued that the drawing of logical inferences indirectly

compels an accused to testify or amount to a situation where an accused is

being penalized for having exercised his constitutional right to refuse to testify.”

[819] In S v Boesak184 it was held as follows:

‘The right to remain silent has application at different stages of criminal prosecution.

An arrested person is entitled to remain silent and may not be compelled to make any

confession or admission that could be used in evidence against that person. It arises again

at the trial stage when an accused has the right to be presumed innocent, to remain silent,

and not to testify during the proceedings. The fact that an accused person is under no

obligation to testify does not mean that there are no consequences attaching to a decision to

remain silent during the trial. If there is evidence calling for an answer, and an accused

person chooses to remain silent in the face of such evidence, a court may well be entitled to

conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of

the accused. Whether such conclusion is justified will depend on the weight of the

evidence.”185

184 2001 (1) SACR 1(CC) at [24]185 At p 542 E-G.

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[820] It is in my view apposite also to refer to the judgment of Goldstone J et

O’Regan J in S v Thebus (supra) 186where the following appears:

‘This Court has held that an adversarial system of criminal procedure necessarily

forces hard choices on an accused, not by the operation of an unfair rule of law, but by the

fundamental nature of the adversarial process itself. This Court has held that such choices

which flow from the character of the adversarial system do not constitute an infringement on

the right to silence.187 Once the prosecution has produced evidence sufficient to establish a

prima facie case against the accused, the accused faces the choice of staying silent, in

which event he may be convicted, or seeking to lead evidence which may or may not be

incriminatory. This hard choices faced by the accused is the consequence not of an unfair

rule of law, but of the operation of the adversarial system coupled with the absence of a valid

defence. In an adversarial system there can be no immunity from facing such choices and

having to make such a choice cannot offend the right to silence as entrenched in our

Constitution.’

[821] I shall therefore approach the evidence presented by the State, and consider

same, having due regard to the afore-mentioned principles in our present

constitutional dispensation.

Clients of Mr Nyoni.

Oscar Kashalula Muyuka Puteho (accused no. 49)

[822] Michael Maswabi Nuwe testified about an incident where under the pretext

that he would be attending a DTA meeting he eventually found himself with a group

of persons at Sachona and unwillingly took part in a journey to Angola. At Sachona

they were trained in the techniques of using fire arms. The witness testified that

Oscar Puteho was one of the leaders of this group and that he Oscar Puteho was

their instructor in the operation of 60 mm and 80 mm motor pipes. Oscar Puteho was

identified by the witness as accused no. 49 in court. The witness further testified that

they were warned by the accused of a rule that no one should escape from Sachona,

and that the consequences of any escape or attempted escape would be that such a

person would be shot. The witness testified that he was together with the accused

person in the SWATF.

186 See also S v Katari 2006(1) NR 205 (HC) at 210.187 Osman and Another v Attorney-General, Transvaal 1998(4) SA 1224 (CC); 1998(2) SACR 493.

292

[823] My Nyoni in his heads of argument submitted that the witness Nuwe deposed

to three witness statements and that not in one of those statements is the name of

the accused mentioned. This Court was referred to Exhibit AV deposed to by the

witness on 17th November 1998, Exhibit AW deposed to on 8th March 2003, and

Exhibit AX deposed to on 2nd June 2003. In respect of the first statement this Court

was referred to the record188 where the following appears:

“. . . when the Police recorded that statement, all I am asking you is you were

quite clear of Oscar, you were quite sure of his roles and you knew about his

identity, is that not so? . . . yes, I was clear with the role he performed and his

identity.

All I am saying is, with all the visions of what Oscar did and well knowing about

his identity, you said nothing about him in that statement, when you were telling

tales to the police who did what and where. . . . I could not say anything about

Oscar.

Court: Excuse me? . . . I could not say anything about Oscar.

Why not? . . . Or I did not say anything about Oscar.

Nyoni: Thank you. . . . I was not asked anything about Oscar or which is

confirmed by Oscar.”

“In respect of the second statement189of 3rd March 2003: your next statement was

on 3rd March 2003 is that correct? . . . Correct.

And again Oscar does not appear in that statement . . . . Even if he does not

appear in the other statement.”

[824] It was submitted by Mr Nyoni that what is conspicuous from these answers is,

firstly that the witness conceded that he never implicated Oscar in any of the

statements tendered to the Police, and secondly, that there is no plausible reason

why, if Oscar did what the witness had described in Court, his statements should be

silent about the accused, especially when he alleges that when the statements were

recorded, he was not only alive about the roles that Oscar allegedly played, but he

was also quite clear about the identity of the accused. Mr Nyoni submitted that the

188 p 2778189 p 2781

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witness contradicted himself fundamentally during re-examination by Mr July when

the witness was referred to his first statement where the following appears:190

“Yes but can you confirm for the purpose of the record that in this particular

statement where you made reference of Oscar Puteho it is in fact Putego

Putego, can you confirm that fact?

Mr Nyoni: That is grossly leading, My Lord”

[825] This Court then put on record that the second person’s name who appears in

the record is “Putego Putego”. This witness that testified that the person referred was

indeed the accused before the Court. This reply it was submitted by Mr Nyoni stands

in stark contrast to what the accused had testified during cross-examination. Mr

Nyoni submitted that the unreliability of the assertion that Puteho Puteho in his first

statement is a reference to Oscar is apparent from the clarification which this Court

sought from Nuwe when this Court wanted to know why the witness could not have

provided the Christian name to the Police to which the witness replied that his

memory failed him so ‘I just give those names Puteho Puteho. This Court then

directed the attention of the witness to the name of the second person in his

statement as Putego Putego and not Puteho and the witness replied that he did not

record the statement.

[826] Mr Nyoni submitted that Nuwe’s credibility in alleging that the person referred

to in his statement as Puteho Puteho was further destroyed with the introduction of

Exhibit ETC by the State which reflects that a person by the name of Puteho Puteho

attended a UDP meeting on 1st January 1999 at Kachiso Centre Mogodisani

Botswana. It was submitted that there was indeed a person answering to Puteho

Puteho who was deeply connected to secession by violent means. It was submitted

by Mr Nyoni that not only did the Christian names of Puteho not appear in the

witness statements but none of the varied and prominent roles alleged in Nuwe’s

testimony in Court were recounted in any of Nuwe’s three statements.

[827] It was submitted by Mr Nyoni that even if one were to assume for the sake of

argument, that Nuwe had forgotten the names of the accused on all three different

and separate occasions when his statements were recorded by the police, at least

one would have expected that the criminal activities the accused is alleged to have

committed as alluded to by the witness, would be contained in the statements, but

190 p 2851

294

not even those roles appear in any of the statements. It was submitted that there is

absolutely no explanation for the omission of the alleged offending roles that Oscar

Puteho is alleged to have undertaken, which Nuwe only brought up, for the first time

in Court when he testified.

[828] My Nyoni submitted that the evidence of Nuwe that the accused had trained

them in the use of big weapons i.e. 60mm and 80mm motor pipes is contradicted by

the evidence of Oliver Mbunlungu who testified that they were given instructions on

G3 and R1 rifles. There was no training in other weapons ‘because there was no

room for that’. It was further submitted that Nuwe’s testimony also conflicts with that

of Alfred Kupulo Kupulo where the latter testified that except for Patric Mwinga the

other instructors at Sachona were Francis Mushandikwe, Progress Munuma and

Alfred Kakena. Oscar Mwisepi testified that he met Oscar Puteho in Dukwe,

Botswana and that Oscar Puteho was one of the platoon leaders. He testified that

he also met Oscar Puteho at Masida when he was in the company of inter alia John

Samboma, John Samati, Richard Misuha, Bennet Mutuso and Oscar Puteho

Muyuka. This witness identified Oscar Puteho in court as accused no 49.

[829] Mwisepi testified that after the attack (on 2 August 1999) a regrouping

committee was formed with the task of organising the rebels and that he (i.e. the

witness) was one of the members of this group. Mwisepi testified that Richwell

Manyemo who was part of this group instructed him to meet with the group of John

Samboma at Masida bush where he found John Samboma, Richard Samati, Bennet

Mutuso, Richard Mishua and Oscar Muyuka Puteho. In the vicinity of this group were

firearms. The purpose of this visit by him was to take food to them and to hear the

difficulties they were experiencing. It was submitted by Mr Nyoni that the witness

could not have been part of this regrouping committee since the alleged

secessionists considered him to be a spy and that he was mistrusted and referred to

the following incidents: firstly, at a meeting where the escape of the Stephen Mamili

group was discussed prior to the attack, the witness was labelled as an informer;

secondly, just before the attack the witness was excluded from attending meetings

where the planning of the attack was discussed and that is why he did not know

exactly when, where and in what manner the attack was going to take place; thirdly,

that Mwisepi had nothing to do with the attack on 2 August 1999, that he was caught

by surprise on 2 August 1999 and at that stage was no longer part of any attack.

295

[830] Mr Nyoni submitted that Mwisepi contradicted himself as regards why he did

not take part in the attack. Mwisepi explained that he did not take part because

there was a lot of work to be done at the village, other commitments. However he

testified that on 2nd August 1999 he was in bed with his girlfriend where he had

‘overnighted’ in Ngweze township (Katima Mulilo). It was submitted that even if there

was such a regrouping committee formed, Mwisepi would have been the last person

to be trusted to have a secret meeting with rebels in the bush. Mr Nyoni referred to

the testimony of Richwell Munyemo (accused no. 115) who during cross-examination

by Mr Nyoni denied any knowledge that such a regrouping committee existed and

denied that he ever tasked Mwisepi to go into the bush in order to contact any

alleged rebel.

[831] It was further pointed out by counsel that Mwisepi testified that he observed

firearms in the vicinity of the group of rebels he visited but in his statement to the

police he stated that these persons were unarmed and that his explanation for this

discrepancy was that he had informed the police officer (who took his statement) that

those men were indeed armed. It was submitted that Mwisepi was a single witness

and that his evidence should be approached with caution. It was further submitted by

Mr Nyoni that either through his confusion or just mere overzealousness to please

the State, Mwisepi was adamant throughout his testimony that the exodus to

Botswana was solely for the purpose of making preparations and eventually to return

to Namibia and carry out an armed struggle to secede Caprivi.

[832] It was submitted in this regard that what is apparent from the evidence, what

motivated many Caprivians to undertake this exodus to Botswana were a host of

influences, and mob psychology. My Nyoni further pointed out that the witness

Mwisepi was a self-confessed liar when he from his return through repatriation (on

28 May 1999) informed the NBC that in future he would not be supporting the idea of

seceding the Caprivi from Namibia. During cross-examination by Mr Nyoni it was put

to the witness that the accused will deny that he was at Masida. The witness insisted

that the accused was there. It was put to the witness that the accused will say that

he was in fact in Zambia to which the witness replied: ‘ I met the group of Oscar at

Masida coming from Zambia’. The witness further confirmed during cross-

examination that he was informed in the year 2000 by police officer Popeinawa that

he would be used as a State witness in this case, but that he nonetheless persisted

with his secessionist ideas until the year 2001.

296

[833] The prosecution called a number of other witnesses whose evidence should

be excluded for two reasons. In the first instance because of torture, and secondly,

because they were unable to identify the accused person in Court. Mr Nyoni in his

heads of argument submitted in respect of these witnesses that: Ruben Bakubulo

Sikwela was subjected to torture and his evidence was ruled inadmissible. He

testified that he had been severely assaulted by the police prior to him giving his

witness statement. Christopher Lifasi Siboli failed to identify Oscar Puteho in court as

one of the accused persons. Alfred Kupulo Kupulo failed to identify Oscar Puteho in

court as an accused persons.

[834] Thomas Franco Mukoya was subjected to torture prior to him giving his

statement to the police and his evidence was ruled inadmissible. Vasco Simombela

was severely tortured and his evidence was ruled inasmissible. The State in their

heads of argument submitted that the name of the accused appears on the

deployment list Exhibit EGK1 and that he is referred to in Exhibit EGO2 (page 10 of

the translated version), as being part of a second group, purportedly set off before

the matter came up in court. The name Puteho Muyuka it was submitted was a

reference to the accused person. It appears from Exh. EGO2 that two individuals

with the name Puteho were part of this group namely, Puteho Oscar and Puteho

Myuka.

[835] The question remains what weight this court should attach to the testimony of

the evidence. In respect of the witness Michael Nuwe it is common cause that he

did not implicate the accused in any of his witness statements to the police. His

reasons for not doing so is unconvincing and this Court must therefore approach his

testminy with caution. In respect of the testimony by Mwisepi there is merit in the

criticism of his evidence by Mr Nyoni and his evidence must similarly be approached

with caution. It was submitted by Mr July that Aaron Jonas a prison warden at

Grootfontein Prison testified that both Oscar Puteho’s were held as accused persons

and that his evidence has placed any suggestion of confusion that may have existed

that accused 49 had been mistakenly mentioned or identified by witnesses in court

beyond doubt.

[836] In this regard I need to make two observations. Firstly, in respect of Exhibit

EGO2 it was submitted by the State that the name Puteho Muyuka refers to the

accused person. If that is accepted to whom does the name Puteho Oscar refer to?

Another question which comes to mind is whether the names connected to Puteho

297

refer to a single person to two individuals? There is uncertainty in this regard.

Secondly, in considering whether or not a prima facie case has hardened into proof

beyond reasonable doubt, other considerations, other than the issue of identity,

including the credibility of a witness must be considered. I must express my

reservations in accepting that the evidence of the witnesses is of such a nature that

this Court may conclude that such evidence is sufficient, in the absence of any

evidence by the accused, that the guilt of the accused was proved beyond

reasonable doubt. I am of the view that the State has not discharged its onus to

prove the commissioner of any of the preferred charged against the accused person

except for those charges under the Immigration Act of 1993.

Martin Sabo Chainda (accused no.103)

[837] Christopher Lifosi Siboli testified and identified accused no. 103 as one of the

individuals who had recruited persons to join the CLA. The witness referred to the

accused only as Chainda stating that he did not know his first names. This witness

during cross-examination persisted that it was the accused person and no other

Chainda whom he knew as the person who recruited individuals for the CLA.

[838] Kasunga Kasunga testified that Martin Chainda told him: ‘These young boys

who went to Botswana they came back so now we are going to cut Caprivi.’ This

witness testified that Martin Chainda referred to the CLA which would cut Caprivi.

This witness testified that Martin Chainda told him this because Chainda knew that

he was a member of SWAPO. This witness, when given the opportunity to identify

Martin Chainda, was unable to do so. It was submitted by Mr. Nyoni that the

identification by this witness of Martin Chainda was erroneous. Mr July in his reply

submitted that the record is absent of any objections by counsel that Siboli’s

identification was wrong. Mr. Nyoni criticized the evidence of Siboli as ‘rigidly biased’

that he was not even prepared to consider that he may be mistaking Martin Sabo

Chainda, before Court, with the latter’s brothers, Shadreck Chainda and Justus

Chainda who were indeed members of SWATF.

[839] This Court was referred to the record where the following exchange

appears:191

191 P.4751 lines 2-6

298

‘Do you by any chance know or could have known one Justus Chainda? … I know

Chainda, the one who is seated there.

So you don’t know Justus Chainda? … Even if I maybe knew him or I just saw him,

but the one I know is the one over there.

I presume you probably knew one Shadreck Chainda. Is that correct? … My Lord,

there can be a lot of Chaindas but the Chainda that I know is the one who is over

there, my Lord.

And naturally you would not know that the two Chaindas I have given you, Shadreck

and Justus were ex-SWATF members. You know, is that correct? … That one over

there, My Lord, he was in the old Army but those you are talking about, I don’t know

them, my Lord.’

[840] And the record continues as follows:192

‘For your information, Mr Chainda was a student nurse in the year 1978. What is your

answer to that? … I don’t know about his nurse profession, because people can treat us but

I don’t know who these are.’

[841] Mr. Nyoni referred to the testimony of Richard Simvula Chainda, a witness

called on behalf of the State and who under cross-examination conceded:193 that he

is the stepbrother of the accused, that the accused was never a soldier or a member

of SWATF, that he (ie the witness) was a member of SWATF, that the accused

originally trained as a nurse, and that the accused was never a member of 701

Battalion. The record further reflects that according to this witness, the accused had

a history of a diabetic illness and that between August 1998 and June 1991, because

of this diabetic illness, the accused sometimes was unable to go to work. It was

submitted by Mr. Nyoni that the testimony of Richard Chainda entirely contradicted

the evidence of Siboli. Mr. Nyoni further submitted that the assertion by the State

Prosecutors in opposition to the application for a discharge in terms of s 174 was

that Martin Sabo Chainda ‘was identified in Court as having recruited persons for the

CLA’. This Mr. Nyoni submitted is not supported by the record.194 The record reflects

that the evidence was led by Mr. January and the witness was in the process of

identifying accused persons in court whose names were mentioned by the witness:

192 P.4753 lines 18-20, p.4754193 P. 20678 - 20679194 P.3657

299

‘Okay proceed. Could you state his195 position where he is sitting? … My Lord, from

the first row, he is in the third row and from the wall, he is seated in third position.

What type of clothes is he wearing? …He’s wearing a long sleeve shirt which has got

the colors of white and black.

It’s accused no.100. Yes anyone, else?

… The other one is Mr. John Samboma seated next to Mr Chainda.

What is the name of Mr. Chainda? …My Lord, I just know him by that name, I’ve

forgotten the other names.

Mr Samboma is accused 54, My Lord. I just want to establish and Mr. Chainda 103.

Anyone else? …’

[842] It was submitted by Mr. Nyoni that Siboli simply described the location of Mr

Samboma by reference to Chainda and that Chainda was not implicated by Siboli as

one of the persons who recruited members for the CLA. I agree with Mr. Nyoni since

the record does not reflect, until that pointing out, that Chainda has previously been

referred to in the evidence-in-chief of this witness. Had the record made reference to

the fact that the witness had testified that Chainda recruited members for the CLA

that pointing out would have been allowed as evidence against the accused, but the

record does not reflect it. The submission that there was no objection at that stage is

immaterial. The name of the accused was mentioned in order to indicate the position

of accused no.54. In any event, even if it is accepted for the sake of argument that

there was a valid identification, then the foundation of such identification, namely that

Chainda was in the SWATF, was destroyed by the testimony of State witness,

Richard Chainda to the contrary.

[843] On this point, the State has led mutually destructive versions from Siboli and

Richard Chainda. The effect of this is that the perceived evidence to be favorable to

the State is destroyed by the evidence of another State witness. In this instance, it

cannot be expected of the accused to supplement any defect in the State’s case.

The evidence presented by the State does not prove the commission of any offence

by the accused person. I therefore need not consider the other submissions in

respect of Siboli made by Mr. Nyoni.

Ignatius Nawa Twabushalila (accused no.44)

195 The witness referred to Mathews Sasele

300

[844] Progress Munsu Mulonga testified about an incident at Shell Filling Station

where he met Geoffrey Mwilima who was in the company of John Samboma. On the

motor vehicle were twelve men including Ignatius Twabushalila. This witness

testified that Geoffrey Mwilima told him that he was on his way with those people to

Angola for military training. The witness stated that Geoffrey Mwilima could not have

kept quiet because of the fact that he (ie the witness) used to attend meetings also

attended by Geoffrey Mwilimo, at which meetings it was mentioned that the Caprivi

Region must be liberated through the barrel of the gun and that people must go to

Angola for military training. This witness identified Ignatius Twabushalila in court as

accused no.44.

[845] It was submitted by Mr. Nyoni that during cross-examination, Mulonga

testified that he had never said anything to Twabushalila; that there is no evidence

that Twabushalila had agreed with what was allegedly said by Mwilima; that there is

no evidence that Twabushalila ever went to Angola for anything; that Mulonga

admitted that he himself never went to Angola. Mr. Nyoni submitted that there is a

material conflict in Mulonga’s evidence as to whether Mwilima told him what the

purpose of the alleged journey to Angola was. In the evidence in court, he testified

that nobody told him about the purpose of the journey to Angola and that during

cross-examination, it appeared that it was an assumption made by this witness that

those individuals went to receive military training. It was submitted that only when

this Court sought some clarification from the witness that he changed to the version

that Geoffrey Mwilima informed him that those individuals were on their way to

Angola in order to receive military training. I agree with this submission.

[846] It was further submitted that the incident at the filling station is devoid of any

ring of truth. In this regard, the following was submitted: It is common cause that

Mulonga was born half deaf; that Mulonga could not hear the interpreter in court

when the clerk attempted to administer the oath in court; that the interpreter had to

speak at the top of his voice and into the ear of the witness; Mulonga could not hear

the prosecutor who was 2 metres from him, and could not hear the presiding Judge;

that he was not aware of the sound system in court; that this problem caused him to

leave the school early because he could not hear the teachers, that he had to leave

his employment as storeman after barely eight months and that consequently, one

would have to shout into Mulonga’s right ear if he is to hear anything at all. It was

301

submitted that the filling station is a public place and this is where it is alleged by

Mulonga that the exchange between him and Mwilima took place.

[847] Mr. Nyoni remarked that no wonder when this court questioned him as to why

Mwilima would inform him of such a sensitive issue at a filling station Mulonga

conceded that it would have been a dangerous thing to do so,196 especially in view of

the fact that Mulonga had never at any meeting showed any support for the idea of

seceding the Caprivi Region. Given the disability of this witness, it would certainly in

my view, have been foolhardy for Geoffrey Mwilima to have shouted what the

purpose at the journey was. Mr. Nyoni further submitted that Mulonga testified during

cross-examination that he never had a personal encounter with Mwilima and that he

(ie the witness) had done nothing to lull Mwilima into believing that he (witness) was

part and parcel of the secessionist movement.

[848] It was submitted by Mr. Nyoni that Geofrrey Mwilima himself during his

testimony denied not only meeting Mulonga at the filling station but also denied that

he ever made such a report to Mulonga. Mr. Nyoni submitted that Mulonga during his

evidence-in-chief portrayed himself as a saint197, yet what he informed the police (i.e.

officer Popyeanawa) depicted him as an active secessionist.198 This court was urged

to approach his evidence with caution because not only is the witness a single

witness in respect of the alleged incident at the filling station but he is also an

accomplice.

[849] This Court (supra) dealt with the testimony of this witness where he testified

about three DTA meetings he had attended, one of which was addressed by

Muyongo and where the attendants or some of them had raised their hands to

indicate their agreement with Muyongo, but that this witness later during cross-

examination disavowed such testimony by stating that Muyongo never addressed

such a meeting.199 It was submitted by Mr. Nyoni, and correctly so, that not only was

Mulonga untruthful, but that he falsely implicated those who have allegedly attended

that meeting.

196 P.6789 lines 2-21.197 P.6815 lines 14-20.198 Exhibit AAM par.7, p.34143 lines 1-2.199 P.6868 lines 2-5.

302

[850] Ruben Nathaniel Hanghome testified that he was a member of the Namibian

Police Force during 1999 and that he was with a platoon of the Namibian Defence

Force on 28 August 1999 near a rebel camp referred to as ‘Cameroon’. He testified

that three individuals tried to run away from this camp. In the process, one of them

was wounded in his thigh by the security forces. He testified that they arrested two

individuals there, namely one Gilbert Poshowe and another person identified by

Poshowe as Ignatius Twabushalila, who was the person who had been wounded.

This person was in shock and was “seriously bleeding”. The witness testified that he

ordered that his shirt be torn up in order to ease the flow of blood because this

person was bleeding heavily. The captured persons together with the items seized

were handed over to the charge office personnel at Katima Mulilo police station. The

items were booked into a Pol 7 register under serial number 232/99. Entry 232/99 in

Exhibit EBB lists 36 items, two of which were described as AK47 rifles, one with

serial number 74CX5835 and the other one with serial number 183021R. This

witness was unable to identify Ignatius Twabushalila in court as one of the accused

persons. Another officer who was with Hanghome, namely Joseph Naikuti was also

unable to identify Ignatius Twabushalila in court.

[851] The witness Hanghome testified that the normal procedure when someone is

handed over to the charge office personnel is to provide the name of the suspect,

where the suspect was arrested and why, and to explain the nature of the injury, if

any. The nature of the injury must be explained in order for the charge office

personnel to take the necessary action for example to take the suspect to a hospital.

Exhibit EBB contains 7 columns where the relevant information should be entered. In

respect of entry 232/99 under column 4 which provides for the name and address of

the lawful owner,or the accused, no inscription was made. In column 5, which makes

provision for (1) the name and address of the finder, (2) circumstances and place

under which found or seized, (3) signature of member or person handing in exhibits

or property and (4) signature of C.O. Sergeant who receives exhibits/property, the

following appears: ‘D/cst Popiyanawa Nampol Windhoek.’ It is not clear to which of

point (1)-(4) this inscription referred to. There was no signature in column 5. What is

common cause is that D/cst Popyeanawa was not at Cameroon base. There is no

evidence from whom D/cst Popyeanawa had received the items listed in Pol7 –

232/99.

303

[852] Mr. Nyoni submitted that the alleged AK47 with serial number 74CX5835 was

attributed to Twabushalila and that an entry in another Pol7-register (Exhibit EFN)

under serial number 232/99 again under column 4 does not reflect the name of an

accused person and that officer Popyeanawa of Nampol Windhoek is endorsed

under the space for name and address of finder.

[853] It was submitted by Mr. Nyoni that an allegation was made that the accused

was shot in his leg, but that the State has never proved that Twabushalila before

Court had any such injury. There was, indeed, no evidence presented by the State

that the accused had received medical treatment. In view of the description of the

wound by Hanghome, Twabushalila must have received medical treatment. I must

refer to a judgment delivered by this Court on 28 February 2007 where Mr Dube who

appeared for Gilbert Poshowe objected to what Poshowe had allegedly said to

Hanghome, who at that stage was an uncommissioned officer, on the basis that it

amounted to an inadmissible admission. The allegation was made that prior to

Poshowe having said anything to Hanghome, Poshowe was ‘thoroughly’ assaulted

and was threatened with death by Hanghome. It was submitted by Mr Dube that the

requirement of voluntariness was vitiated by the preceding assault on Poshowe. It

was submitted by Mr. January on behalf of the State that the truthfulness of the

name provided is not in issue but the fact that it was provided and therefore the

provisions of s 219 A of Act 51 of 1977 were not applicable. The objection was

eventually not upheld.

[854] I need to mention two issues regarding the objection raised. In the first

instance, the evidence presented by the State was not presented in order to prove

the truthfulness of what was said by Gilbert Poshowe, and secondly, it remains a

question of what weight, if any, this Court should attach to what was conveyed to

Hanghome. Gilbert Poshowe was released in terms of s174 of Act 51 of 1977.

[855] In respect of the evidence of State witness Mulonga, I agree with the criticism

and submissions by Mr. Nyoni. Mulonga was a single witness and an accomplice

and his evidence must be approached with caution. I am of the view that the

testimony of Mulonga was contradictory in itself and that his testimony was not clear

and satisfactory in every material respect. It is indeed ludicrous to envisage Mwilima

struggling to communicate with a half deaf person on a topic of that nature at a

304

public place frequented by all sorts of people. In respect of the incident at Cameroon

base, it is common cause that the State witness was unable to identify Twabushalila

in court. There is no connection at all between the weapons retrieved and the

accused person. In view of the failure by Hanghome to identify the Twabushalila, one

would have expected evidence to the effect that the accused received medical

treatment for a serious wound in his thigh but no such evidence was presented.

[856] This Court cannot rely on the testimony of Hanghome that Gilbert Poshowe

had identified his companion as Ignatius Twabushalila. The communication by

Poshowe to Hanghome was not tendered to prove the veracity thereof. State

witnesses who also testified about an individual by the name of Ignatius

Twabushalila were: Boys Manahano Ishangu who did not identify Twabushalila,

Alfred Kupulo Kupulo who did not identify Twabushalila, and Desmond Twabushalila

who did not identify Ignatius Twabushalila.

[857] The State bears the onus to prove the commission of an offence beyond

reasonable doubt. There is a suspicion that accused no.44 was captured at

Cameroon base, but it remains just that, namely a suspicion. I am not satisfied that

the State had succeeded in discharging its burden of proof in respect of all the

charges preferred against the accused person.

Patrick Itwa Likando (accused no.89)

[858] This Court stated the following in the s 174 application:

‘This accused person is in exactly the same position as accused no.88. Similar

evidence was presented. This accused owes allegiance to the State.’

[859] In respect of accused no.88, this Court at par [440] stated:

‘Mr January submitted that the accused was aware of plans to secede the Caprivi by

violence form the rest of Namibia and that the accused person, being someone who owes

allegiance to the State, had a duty to report to the relevant authorities which he failed to do.

This is indeed in line with the authorities (S v Banda (supra)) and is an exception to the rule

requiring the commission of an overt act of treason accompanying the hostile intent.’

305

[860] And at par [441]:

‘Thus, even if the submission by Mr. Nyoni is accepted, the accused cannot escape

liability since what was submitted by Mr January correctly reflects authoritative case law.’

[861] It was submitted by Mr. Nyoni that Bernard Kanzeka testified that an individual

answering to Patrick Likando attended an alleged meeting in which Mr Mwilima

(accused no 68) addressed those in attendance, but when Kanzeka was given an

opportunity to identify that individual amongst the accused, he failed to do so and

that fact was put on record:200

‘Mr. Nyoni: May I be permitted to do the same, My Lord? My client Patrick Itwa and

Martin Chainda who are in court and they have not been identified.’

[862] It was submitted by Mr. Nyoni with reference to the record201 that Kanzeka

was granted the opportunity the next day to identify persons that he had mentioned

in his testimony and that Likando was not identified by him. This Court was referred

to its ruling on the topic of dock identification where this Court posed the question:

‘…what weight, in any, this court should attach to the fact that a name was

mentioned by a State witness but where there was no dock identification or where

the wrong accused was pointed out.’ It was in this regard submitted by Mr. Nyoni,

and correctly so, that Kanzeka mentioned names similar to that of the accused

person but did not identify him, when he was granted the opportunity to do so on two

separate occasions, failed to do so. Consequently, it was submitted that the State

failed to connect this accused with any of the charges before court.

[863] Mr. July in his written reply did not deal with this submission by Mr. Nyoni. It

was submitted on behalf of the accused, that the only State witness who identified

the accused was police officer Aupa Erastus who gave favorable evidence in respect

of the accused person, namely that on 4 August 1999, the accused came to the

police station by himself since he had been informed that the police was looking for

him. The testimony of Aupa Erastus was that in the warning statement admitted as

Exhibit ENL, the accused maintained that he did not know anything about the

200 P.6045 line 13-15201 P.6047 - 6058

306

secessionist activity that took place on 2nd August 1999, and that he was not party to

that movement. Counsel referred to the testimony of Chief Inspector Evans Simasiku

in respect of his testimony regarding documents seized during a search of the house

of the accused. It was submitted that in addition to the fact that Simasiku had no

search warrant, the documents seized did in no way incriminated the accused in the

commission of any offence. Counsel referred to the record202 where the following

exchange between Mr. Nyoni and officer Simasiku appears:

‘Now officer, from what you have said, when you have searched the premises

of Mr. Itwa, you found nothing to connect him with CLA. Is that correct? …That is

correct.

And when you searched those premises, you found absolutely nothing to connect

him with any attacks of the institutions of Namibia in the Caprivi Region. Is that

Correct? … No, My Lord.

And you (intervention)

Court: Just a moment. If you say ‘No’ what do you mean?

…What I mean, My Lord

Court: Do you disagree or do you agree?

… I agree with what he is saying.

Mr Nyoni: Thank you, My Lord, I am obliged. You found nothing to connect this

gentleman called Itwa to the charges before Court. Do you agree with me?

… Correct.’

[864] It was submitted by Mr. July that in Exhibit EGO 2 (the translated version at

p.4) Brian Mboozi, a former co-accused and co-conspirator refers to Itwa Likando as

a supporter. It was submitted by Mr. Nyoni that there is no evidence linking the

alleged Itwa Likando referred to in Exhibit EGO2 to the accused Patrick Itwa

Likando. I agree. I agree with the submission by Mr. Nyoni that the election by the

accused not to testify entails no risk to him, since no one identified him and there is

no evidence linking him to any offence.

Clients of Mr. Neves

Bernard Mucheka (accused no. 75)

202 P.34064 lines 22-32 and p.34065 lines 1-10.

307

[865] Christopher Siboli testified and identified the accused as the person who was

to announce at the Namibian Broadcasting Corporation (NBC) after all the

institutions targeted for attack had been taken over, the fact of such take over. It is

common cause that the accused was employed at the NBC in Katima Mulilo as an

executive producer prior to the attack on 2nd August 1999. This witness testified that

during the year 1997 and at the house of Leonard Mutonga Ntelamo, a meeting was

held where the issue of secession was discussed. He testified that the accused

attended this meeting and that Gabriel Mwilima was also in attendance. The witness

testified what was also discussed was what was to be done after they had taken over

the Caprivi Region. It was the testimony of the witness that the accused at this

meeting expressed his willingness to make such an announcement.

[866] During cross-examination by Mr. Neves, the witness was asked how many

meetings he attended during the year 1997 to which the witness replied that he could

not remember very well whether he had attended a meeting or not. The witness was

asked whether he attended any meeting, at all in 1997 and the witness replied that

he could not remember very well. It was put to the witness that Bernard Mucheka did

not attend a meeting in 1997 in respect of the issue of secession. The witness

replied that the accused did attend meetings, but that he could not remember the

year in which the accused attended.

[867] Bothman Sikute testified that once during 1998 or 1999, he was driving from

Katima Mulilo to Kanono. Bernard Mucheka, a cousin of his was his passenger. He

testified that an issue frequently discussed in the Caprivi Region was an agreement

between Muyongo and the first President of Namibia, Mr Sam Nuyoma to the effect

that once Namibia had gained independence, the Caprivi Region would be

separated from the rest of Namibia. On this occasion, the accused asked him about

this issue and was merely enquiring whether there was such a meeting. When the

witness was asked what the stance of the accused was in respect of this issue, the

witness answered: ‘Nothing.’ In my view, nothing turns on this conversation.

[868] Mr. Neves also refers to the testimony of the witness Siboli during cross

examination by counsel Mr Kauta when the witness was asked when he had

attended a meeting at Leonard Ntelamo’s house, he replied that he could not

remember and could not recall the year in which he had allegedly attended such a

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meeting. Mr. Neves further referred to the record where he submitted that the first

statement deposed to by this witness on 23rd March 1999, no mention was made of

Bernard Mucheka, but only four years later in 2003 was Mucheka mentioned in a

statement. Mr. Neves submitted that the witness had difficulty in identifying Mucheka

and with reference to the record, submitted that the witness had been assisted or

guided by the prosecutor to identify the accused. It was submitted by Mr. Neves that

Siboli was a single witness and that his testimony was unreliable. Mr. Neves

submitted that the evidence of Leonard Mutonga Ntelamo was that during the year

1997 no meeting took place at his house (no.946), and that the accused only visited

his house in respect of work related issues. Counsel also referred to the testimony of

Veronica Ntelamo, the wife of Leonard Ntelamo, who denied that a political meeting

had taken place at her house in the year 1997. It was submitted by Mr. Neves that

the State had failed to discharge its onus and that there is no case which required a

reply from the accused.

[869] The only witness who gave incriminating evidence against the accused was

Siboli. This witness, during cross-examination, revealed that he was unable to testify

with any measure of certainty about any meeting which he had attended during the

year 1997. It was disputed that the accused attended a meeting referred to by the

witness. In addition, the testimony of Siboli about a meeting in 1997 at the house of

Leonard Ntelamo was disavowed by Leonard Ntelamo as well as his wife Veronica

Ntelamo.

[870] Having regard only to the testimony of Siboli who was a single witness as well

as a co-perpetrator, this Court must approach his testimony with caution, since as I

have indicated (supra), his evidence was not clear and satisfactory in all material

respects. I agree with Mr. Neves that there is no case to which the accused needed

to reply to. The State has failed to prove the commission of any of the charges

preferred against the accused person beyond reasonable doubt.

Tiiso Ernest Manyando (accused no.37)

[871] Ruben Bakabuba Sikwela testified about his involvement in the plan to

secede the Caprivi from the rest of Namibia. He testified that on 1st August 1999, he

was at Makanga prior to the attack on 2nd August 1999. The witness testified that

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Ernest Manyando was present at Makanga. The witness identified Ernest Manyando

as accused no 37 before court. This Court in the s.174 judgment referred to the

testimony of this witness in paras. 580-581, 587, 596 and 606. I shall refer to paras.

580-581 and 587:

‘[580] Ruben Bakabuba Sikwela testified that he was in a group that went to attack

Katounyana police base and that Victor Lunyadile was in that group and had a fire-

arm. When he was requested to identify the people in court who went with him to

Katounyana base, he could not identify a single person.

[581] The testimony of this witness was also that he was severely beaten by the

police when a witness statement was extracted from him. The witness testified that

he gave two statements to the police. In the first statement, he did not state to the

police what they wanted. He gave the second statement because he was frightened

because the police officers had a tendency of severely beating the villagers. He

testified that prior to giving his second statement, he was severely beaten by police

officers because he did not give them a satisfactory version the first time. The

witness testified that he was severely beaten with a whip by those police officers.”

[587] During cross-examination, the witness stated that the police gave him a list

containing names and told him what those persons allegedly have done, namely to

cut Caprivi from Namibia through violence. The witness testified that he sustained

serious injuries as a result of those assaults and that he was afraid of the assaults

and that is why he gave the police the statement. This witness showed a number of

injuries and visible scars in court. This witness testified that the prosecution team

informed him not to bring the assault matter to court when testifying. The witness

testified that he feared that after he has testified, he may be visited by either the

military or the police to be beaten up again.’

[872] This Court at that stage ruled that the testimony of this witness should be

disregarded. Mr. Neves referred to the record203 when this witness was led by Mr.

July during his evidence-in-chief:

‘Where was he on the 1st of August 1999, do you know?... I knew that he was at or at

the village.

Was he at Makanga on the 1st August 1999?

203 P. 11823 lines 18-21; p. 11824 lines 1-3.

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Court: Mr. July, that was leading.

Mr. July: Thank you, My Lord, thank you. Do you know where he was when you were at

Makanga on the 1st of August 1999? …No, I did not even see him at Makanga.

Thank you, My Lord, that concludes the evidence-in-chief.’

[873] Mr. Neves in his heads of arguments referred to the following witnesses called

by the State in an attempt to prove a case against the accused:

Lister Akane Tubazibale

Advocate Nyamayabo Tubazibale

Felix Muyaya Kaliyangile

Joe Tibasehe

Ivan Jonah Twabulamayo Mate

Walters Mwezi Sikochi

Michael Malaboka Ziezo and

Ruben Bakabuba Sikwela

[874] It was submitted and correctly so, that only Ruben Bakabuba Sikwela

identified the accused in court whilst the rest of the witnesses failed to identify the

accused in court when given the opportunity to do so. It was submitted that no

evidence was tendered against the accused which required any answer from the

accused person. I agree.In my view, the State has failed to prove the commission of

any of the charges preferred against the accused beyond reasonable doubt.

Clients of Mr Dube

John Samati Yalubbi (accused no.53)

[875] Oscar Mwisepi testified that he (i.e. Mwisepi) was in a group of individuals

which was formed with the task of reorganizing the rebels after the attack on 2

August 1999. In the execution of this task, he went to Masida where he found John

Samboma, Richard Samati (also known as John Samati), Bennet Mutuso, Richard

Misuha and Oscar Muyuka Puheho. These individuals had fire arms which were

placed on the other side of the road. The witness testified that he delivered food to a

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place called Masokotwane which was received by a man called John Samati.

Mwisepi testified that John Samati is his brother in law and was at Dukwe.

[876] I have considered and evaluated the evidence of Oscar Mwisepi when I

considered the evidence against one of the clients of Mr. Nyoni and who was also

referred to by Mwisepi as being part of the group of five men observed by him. The

same finding applies in respect of the evidence by Mwisepi against the accused. It

was submitted by Mr. Dube that Mwisepi was the only witness who testified against

the accused person, is therefore a single witness and that such a single witness

must be a credible witness. I have stated during my judgment in the s.174

application that the credibility of the State witnesses, with reference to the relevant

authorities, at that stage was for the reasons mentioned not a crucial consideration

then. However, that had changed now at the conclusion of this trial after the defence

counsel had closed the cases of their respective clients. This Court therefore cannot

as a matter of law approach the question of whether the State has discharged its

onus on the basis that there was a prima facie case proved against a specific

accused person, the accused person did not testify, and therefore the prima facie

case now becomes proof beyond reasonable doubt in the absence of the testimony

of the accused person.

[877] I have indicated when considering the same testimony by the witness against

a client of Mr. Nyoni, and expressed my reservations in respect of the testimony of

Mwisepi and the reasons provided therefore and because of the fact that Mwisepi is

a single witness, his evidence on that point must be approached with caution.

Additional evidence which was not available to Court at the closure of the case for

the State, namely the testimonies of accused persons need also to be considered in

the determination of whether the State has discharged its onus namely to prove the

commission of an offence beyond reasonable doubt.

[878] If the evidence of Mwisepi, in respect of his observations at night at Masida

and why he allegedly went there, cannot be relied upon by this court, then this

accused person has no case to answer. The fact that he chose not to testify is of no

consequence. The final test, as I have indicated on numerous occasions (supra), is:

did the evidence presented by the State prove the commission of an offence beyond

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reasonable doubt? In my view, the State has in respect of this accused person failed

to discharge that onus in respect of all the charged against this accused person.

Richard Libano Misuha (accused no.48)

[879] Oscar Mwisepi testified that he found Richard Misuha as one of the

individuals who was part of the group of five persons in the group of John Samboma

when he visited Masida. Mwisepi did not identify Richard Misuha as one of the

accused persons before court. Michael Maluboke Ziezo testified that he attended a

meeting at Masida where one of the speakers was Mishake Muyongo, who

addressed the attendants about the attainment of education in order for Caprivi to

stand on its own. This witness testified that Muyongo asked those who wanted to

follow him, to raise their hands and that Richard Misuha raised his hand in

agreement. The witness did not testify that Muyongo spoke about seceding the

Caprivi by military means. This witness was unable to identify Richard Misuha in

court when given the opportunity to do so.

[880] Walters Mwei Sikochi testified that he was taken in the dead of night and

transported to a place called Makanga. At Makanga, he found a number of people,

one of whom was Richard Misuha who was unarmed. This witness identified Richard

Misuha in court as accused no.48. It was submitted by Mr. Dube that this witness

was subjected to torture prior to a police statement being extracted from him. In the

application for a discharge i.t.o. s.174, Mr. Dube submitted that the testimony of this

witness was inadmissible. I find it appropriate to refer to an extract of the judgment

paras [551] - [555]:

‘[551] Mr Dube submitted that the testimony is inadmissible as it offends Articles

8(2) (b) and 12(f) of the Constitution of Namibia and the Convention Against Torture (CAT).

The evidence by this witness is that he made two statements to the police one during

November 2000 and one during March 2001. The witness testified that in his first statement

he did not inform the police that he participated in an attack. The police afterwards on

numerous occasions approached him and encouraged him to tell the truth. He recounted

one incident where he was collected by police officers at his mother’s house and taken deep

into the bush near Zambezi Vocational Training Centre in Katima Mulilo. There the police

officers told him to tell the truth, ‘if not we do not know what will happen’, and pulled out their

pistols from their holsters. He testified that he told them that they would not get anything

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from him if they think they could collect him in order to kill him in the bush. He testified that

he told them that they should go to his mother and report that they have killed him.

Whereupon the police officers told him to get back into the vehicle and they drove back.

[552] The witness recounted another incident just prior to making his statement when the

police officers approached him with certain information and showed him a document

containing a list of names on which his name also appears. This document was apparently

found on the body of Shadrick Chainda.

[553] This witness during cross-examination stated that he was aware of the fact that

suspects had been assaulted by the police simply because they had been in Botswana. This

witness conceded that before he made his statement on 16 March 2001 he was aware that

he could be tortured for no other reason than the fact that he had been in Botswana; he

conceded that he could be arrested and send to jail for no other reason than going to

Botswana; and he conceded that he knew that he could be tortured because he had actually

participated in the attack on Katima Mulilo. This witness was asked what then ‘persuaded’

him on 16 March 2001 to disclose everything to which the witness replied that it was

because the police had information about his involvement in the attacks. He testified that the

statement was given voluntarily; that the police provided him with a list of names and asked

him whether he knew the persons whose names appeared on the list; that his name

appeared on the list and he then told them that he was at Mpacha on the night of 2 August

1999. The witness testified that he had no ‘escape route’ but to disclose to the police what

had happened. The witness agreed that the name of Richard Misuha (accused no. 48)

appeared on the list.

[554] It was put during cross-examination that the accused denied that he was seen by the

witness at Makanga to which the witness responded by reminding counsel not to ‘dig gravel

on a concrete place’, saying that such a statement was untrue. It was put to the witness that

the accused will say that he was not in Botswana at that stage. This was denied by the

witness. It was further put to the witness that he was merely implicating the accused

because he just confirmed what the police had told him. This was also denied by the

witness.

[555] I have referred (supra) to the inadmissibility of evidence obtained by means of

assault and torture. However each case must be considered on its own merits. I am of the

view that the second statement given to the police and the subsequent testimony of this

witness in court do not violate the provisions of the Constitution of Namibia referred to, and

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do not violate CAT. I shall therefore accept the evidence of this witness as admissible

evidence against the accused person.’

[881] Mr. Dube now asks a rhetorical question, namely what weight, if any, this

Court must attach to the evidence of Sikochi. It was submitted that no weight should

be attached to the testimony of this witness to the extent that it implicates the

accused person. It was submitted that the evidence of this witness presents a very

serious risk of leading to a conviction of an otherwise innocent person, that the

torture perpetrated on him by the police “deducts” from the trust-worthiness of this

witness, and that it would be very unsafe to rely on the evidence of this witness. The

rationale of my ruling in respect of the acceptance of the evidence of this witness

was that the witness was not intimidated by the tactics of the police and that the

second statement he deposed to, was not extracted from him as a result of torture or

intimidation, and I still hold that view.

[882] Another witness who identified Richard Misuha in Court was Thomas Mukoya

who testified about an incident where he had on 1st August 1999 been escorted from

his house by two armed men. This witness was severely assaulted by the police

prior to extracting a statement from him. I have dealt with the testimony of this

witness in the s.174 application and elsewhere in this judgment and ruled this

testimony as inadmissible in view of the torture perpetrated on him.

[883] Mukushi Events Kaine testified about an incident on 1st August 1999 when he

was fetched from his village by three persons of whom he only knew two persons,

namely Kenneth Samulandela and Thaddeus Muzamai. He was taken to Makanga

bushes where he saw Richard Misuha holding a fire arm. During cross-examination,

the witness testified that he was arrested on 21st August 1999 and released from

custody on the 4th of September 1999. He did not appear in a court of law. The

witness testified that the police did not inform him why he was arrested and that he

did not ask the police why he was arrested because he was scared. The witness

testified that the police informed him that they would inform him later. During his time

in detention, nothing happened and the police did not ask them anything. Some of

the other persons detained with him asked the police the reason for their detention

and the police responded by saying they were still busy with their investigation. The

police confronted the witness with a list on which his name appeared and told him

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that he was part of a group which attacked Katima Mulilo. The witness testified that

he confirmed it, and the police told him to tell what happened in this group of people

who went to attack the NBC. The police told him that there was no need to argue

about it. The witness testified that the police contacted him 1 year and 10 months

after 1st August 1999 in connection with his statement. The witness testified that

Richard Misuha is his cousin.

[884] It was put to the witness that he merely told this Court what he was told by the

police. The witness agreed. It was put to the witness that the Richard Misuha will

deny that the witness saw him at Makanga. The witness confirmed that Richard

Misuha was there at Makanga. It was put to the witness that Richard Misuha will

deny that he ever had a gun in his possession. The witness disagreed. During the

cross-examination by Mr. Neves, the witness confirmed that the police visited him on

2 April 2001 in order to obtain a statement from him. The witness was asked whether

it did not cross his mind that he would suddenly be incarcerated. The witness

confirmed this. The witness was asked whether the police had told him that since his

name appears on the list and since they knew about his participation in the attack on

2 August 1999, he was running the risk of being arrested again. The witness replied:

“No, they did not say that.” This witness identified Rihard Misuha as accused no.48

in Court.

[885] I do not agree with the submission made by Mr. Dube that the witness feared

further incarcerations and that this court should rule his evidence as inadmissible on

the grounds that he was tortured. The evidence of this witness corroborates the

evidence of Sikochi that the accused was at Makanga on 1st August 1999 where the

final preparations were made for the attack on Katima Mulilo the next day. A number

of other witnesses also testified about the involvement of Richard Misuha in the

preparations of the attack on 2 August 1999 but did not identify Richard Misuha as

one of the accused persons before Court. Thomas Franco Mukonga was one of the

witnesses called by the State but this Court had ruled his testimony inadmissible in

the s.174 judgment due to the fact that he was severely tortured prior to the police

extracting a witness statement from him.

[886] The accused did not testify in his defence. There is direct evidence implicating

this accused in the offence of high treason. This evidence called for an answer but

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none was forthcoming from the accused. I am satisfied that the State has succeeded

in discharging its onus to prove the commission of the offences preferred against this

accused beyond reasonable doubt.

Moses Chicho Kayoka (accused no.47)

[887] Akson Liyenga Masule, a Zambian national and a witch doctor, told the court

that he treated a number of persons at Navumbwe Island in preparation for the

secession of the Caprivi Region. He mentioned the names of persons whom he

could remember, namely, Mutuso, Andeas Mulupa and Johnny Samboma. When

this witness was given the opportunity to look at the accused persons to see if he

could see anyone of those whom he had treated at the island, he pointed at accused

47 and shouted: ‘Moses Kayoka’.

[888] It was submitted by Mr Dube that this identification is fraught with irregularities

and refers to the following: the fact that witnesses were shown an album with

photographs and names of the accused persons before testifying in Court; the

witness is a Zambian national who had seen the accused only once in his life and

amongst a large group of people, the witness testified in Court six years from the

date of that incident, that it is highly unlikely that the witness could have identified the

accused with such exactitude six years later; that he did not mention the name

“Moses Kayoka” in his evidence-in-chief prior to him being given the opportunity to

look at the accused persons, that he pointed twice at the other side of the Court as

where Moses Kayoka was seated.204 This fact was placed on record by Mr. Neves. It

was submitted by Mr Dube that this identification must carry no weight. I agree that

this Court cannot attach any weight to the identification of the accused by the

witness for the reasons mentioned by Mr Dube.

[889] Luwake Oscar Simbulu testified about an incident during October 1998 where

he was a passenger in a motor vehicle driven by Thaddeus Ndala at night. At one

point, they stopped and Ndala blew on a whistle. A number of men emerged from the

bushes carrying travel bags on their backs. He recognized John Samboma, Moses

Kayoka, and Gilbert Poshowe. This group of men boarded the vehicle and

subsequently near Singalamwe, they disembarked. John Samboma led them on foot

204 P.3295 line 23 to p.3296

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into Zambia. On the way, they heard two gunshots and Samboma told them it could

be members of the Special Field Force who were shooting. They then ran toward

Zambia. From Zambia, they went to Angola where John Samboma went to a UNITA

camp. Samboma told them that they needed military training in order to fight the

Government of Namibia. This witness identified Moses Kayoka in court as accused

no.47.

[890] Mr Dube submitted that the witness was not candid with the court. He was a

person on his way to his village who finally found himself amongst a group of people

with fire arms, went to Zambia and Angola, stayed with these people in a camp in the

bush, and that this could only have been possible if the witness were a willing

participant.

[891] Christian Ndemufayo Munyika, a member of the NDF, testified that on 1

September 1999 at Kaliyangile, he observed two suspects and asked them to

identify themselves. The one person identified himself as Moses Kayoka and the

other one identified himself as Ernesto Lifasi. This witness testified that these two

individuals were in possession of two AK47’s.

[892] Mr Dube submitted that it is not in dispute that the accused was arrested by

the military on 2nd September 1999 after the State of Emergency in the Caprivi

Region had been uplifted. It is also not in dispute that he was arrested by Christian

Ndemufayo Munyika, George Nanisele, Viru Katuta, Moses Muemwa Sesa and

Richard Siseho, all members of the NDF. It was submitted that the circumstances,

conduct and utterances the accused might have made at the time of his arrest be

ruled inadmissible, as such evidence would render the trial unfair, that the soldiers

did not inform accused no.47 of his constitutional rights and neither did they warn

him in terms of the Judges’ Rules. It was further submitted that there is something

that the members of the military who arrested Moses Kayoka decided to hide to the

Court. It was submitted by Mr Dube that it is not in dispute that this accused was

arrested at a village because Richard Siseho, a member of the military who was part

of the arresting group, said so. Moses Mulemwa Sesa told the court that the military

arrived at the village at approximately 04h00 and surrounded the village. Moses

Kayoka and another individual were arrested and handed over by Richard Siseho to

a member of the military, namely, Christian Ndemufayo Munyika.

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[893] Counsel pointed out that when Munyika was asked a direct question by the

prosecution about what happened to the two arrested persons when the soldiers

departed to the rebel base, the answer he gave was clear and said: “My Lord, I left

the two persons in the company of my colleagues.”205 It was submitted that it is

common cause that the accused was handed over to members of the Namibian

Police Force under the command of Inspector Karstens at an alleged base and that

the police team included officers Evans Simasiku, Erastus Aupa, and Mbinge. The

accused was interrogated at the scene. His clothes were full of dust. He was

nervous, had the “fright of his life” because people had been killed around him and

his behavior was not normal. The accused provided Inspector Karstens with the

names of suspected rebels who were allegedly at that camp. It was submitted that it

is common cause that the accused was not informed of any right because it was

reasoned by Inspector Karstens that he (i.e. the accused) did not incriminate himself

and the accused was merely asked to provide the police with information. The

accused was subsequently taken to Katima Mulilo police station where he was

detained. It was further submitted that the alleged rebel base is approximately 10 km

from the village where the accused had been arrested and that this court is in the

dark about the movement form the village to the rebel base.

[894] It was submitted that the accused was not arrested at the rebel base where

the police received him from the military. Counsel submitted that it is an inescapable

fact that it was the army who took Moses Kayoka from his village to the alleged rebel

base and that this is so because the police found him in the company of the army at

the alleged rebel base. It was submitted by counsel that the only reason why

members of the army did not tell the Court how the accused was moved from the

village to the alleged rebel base was because the rights of the accused had been

violated and this Court was urged to reject the testimonies of these members of

NDF.

[895] I am unable to agree with the submission by counsel to the effect that since

there is a void in the chain of events, it follows that the members of the NDF had

something to hide and that it must have been the fact that the rights of the accused

had been violated. It appears to me that what is not disputed is the fact of the arrest

205 P. 18040 lines 4-7.

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of the accused, and that he was in possession of an automatic rifle. (AK47). This

evidence stands uncontroverted. In spite of the fact that the evidence of Simbulu was

questioned by Mr Dube and the submission made that the witness was not candid

with this Court, there is really no submission that the witness was untruthful to such

an extent that his evidence should be rejected by this Court. This Court is aware,

because the witness is an accomplice, that his testimony must be approached with

caution.

[896] The evidence of the witness Simulu related to an event prior to 2 nd August

1999 when the accused, as testified, was amongst a group of persons who sought

military assistance from UNITA in order to secede the Caprivi Region by violent

means. The evidence of Munyika (and the other members of NDF) relates to an

event after 2nd August 1999 after the attack on Katima Mulilo. There is evidence

before this Court that after the failed attempts on 2nd August 1999, there was an

attempt to organize the conspirators for a second attack in the Caprivi Region. The

evidence presented by the State constitutes direct and undisputed evidence that the

accused participated in events prior to and after the attack on 2 August 1999. A

number of other witnesses were also called by the State. However, these witnesses

either failed to identify the person Moses Kayoka in court or their testimonies were

ruled inadmissible due to torture by members of the police prior to extracting witness

statements from them.

[897] The accused elected not to testify. I am satisfied that in these circumstances,

there is proof beyond reasonable doubt that the accused committed overt acts and

that the only reasonable inference is that he had the required hostile intent.

Clients of Mr Samukange.

Bennet Kacenze Mutuso (accused no.69)

[898] Oscar Mwisepi testified that he saw the accused person in Dukwe, Botswana.

This witness further testified about an incident at Masida where Bennet Mutuso was

with John Samboma and that they were in the ‘status’ of secceding the country,

meaning that they were still in the status of rebelling against the State. The witness

identified Bennet Mutuso as accused no.69.

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[899] Jason Ntelamo testified that he was introduced to the accused in Dukwe as a

group leader. This witness testified that the accused told them to be patient and that

one day, the Caprivi Region would be cut from Namibia. The accused was identified

in court by this witness. Lemmy Kasoondaha Haufiku, a member of the NDF during

1999, testified about the attack on Mpacha Military Base on the morning of 2nd

August 1999. Four rebels were captured as well as military equipment and other

articles. The witness testified that a military bag was found inside the premises of the

military base. When they searched this bag, they found an exercise book written on

top of it: “Bennet Mutuso.” Inside the bag was also found a list of Government

Institutions to be attacked, namely: Mpaha military base, Kongola fort, Katounyana

police base, Katima Mulilo police station, Central Shopping Centre Katima, NBC

Katima, and Wanela Border post. This list was kept and handed over to the police.

Inside this bag was also a UDP flag. This witness identified Exhibit 1 as the flag

which was recovered from the bag of Bennet Mutuso. The witness also identified

Exhibits DAY and DAZ as items which were found in the same military bag. A plastic

plate on which the name “Bennet” was written was also found inside this bag as well

as military uniform. This witness identified photo 17 in Exhibit Q as some of the

captured material including a 60mm mortar pipe; on photo 18, two RPG7 rocket

launchers and 60 mm mortar shells as well as the bag which contained the

documents referred to; on photo 21 captured fire arms; on photo 25 military uniforms

recovered from the bag of Bennet Mutuso, and photo 28 which depicts military bags,

bandage, medicine, a red plastic bowl written on the bottom of it the words: ‘Chung’

and underneath it ‘Bennet’. These photographs were taken by Detective Sergeant

Daniel Mouton on 3 and 4 August 1999 at Mpaha military base.

[900] Exhibit EGH1 (C1) is a document with the title “Talks with our members inside

the country”. Paragraph 2 reads as follows:

“What happened on the 2nd August 1999 was a mistake which was done by certain

individuals amongst us, but now we are or I am on a certain new planning together with our

no.1 (MM) and our supporters.”

This document consists of 15 paragraphs and was dated 03/03/2000 and concluded

with the following:

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“My name is Spiderman”.

[901] Exhibit EGH3 (C3(I)) contains a document: “Plan to invade Caprivi on

Battalion level.” There is also attached to this, a document with the title: “Remarks by

Spiderman” and reads as follows:

“If we could be able to come up with that number on the plan, Caprivi could be in our

control after 3 days, war could be tense in Western Caprivi but not more than 3 months. All I

need me pipo must be well trained and well-arranged or adviced about war.

Then, the proper wpns + serviceable. Otherwise, my plan is to fight for 7 days only. Then our

UDP-flag could be hoisted and called upon the release of Caprivians from Namibia and a

call to Denmark Government to bring our President and Paramount Chief back into their

country without fear.

The President must come and prepare the fruitful Government as our top leader in Caprivi.

He’s the only man to lead us in harmony without any fear.

Thank you.

Spiderman: (Caprivi Liberation Army Commander)

Brigadier.”

[902] C3(4) is part of Exhibit EGH 3. The first paragraph starts as follows: ‘I am

Spiderman who likes to air his views to you, Sir,…’ The second paragraph starts as

follows: “Mr President Sir, we are very few, others have fallen sick in Botswana,

others have been apprehended.” On the second page appears the following:

“I NEED THE MATERIALS WHICH CAN FIT 4000 PIPO IN THE BUSH, MORE

SPECIAL WPNS + FOOD.”

C4 which is part of Exhibit ECH3 is a small black exercise book. On the front outside

cover appears the number 2000 and underneath it “Spiderman”. On the first paper,

the date 01.01.2000 appears and starts with the following:

“Spiderman is with the motive of freeing Caprivi from oppression of Namibians. I am

a Caprivian, not a Namibian.”

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On p.9:

“I went to Botswana for help but in vain, we were told to take volunteer repatriation

back to Caprivi. Some did so in order to blind the Wamboes.”

One of the pages has the following title:

“Planning for the CLA.”

[903] At the back of this Exhibit appears the surname ‘Mukuzo’; first name ‘Bennet

Kachenje’, nickname ‘Spiderman’, date of birth 1960-08-12 and other personal

information. Exhibits ECH 1 – ECH 5 contain “questioned documents”. Exhibits

ECH6 and ECH7 contain “requested specimen writing” and “collected specimen

writing” and were compared by handwriting experts and the analysis done proved

the accused to be the author of the questioned documents.”

[904] It was submitted by Mr July that Exhibit EGH (1-5) prove that the accused was

a leader figure in the CLA and was committed to fight militarily for the independence

of Caprivi from Namibia. It was further submitted that documents authored by David

Mumbone were found in the military bag seized inside Mpacha military base. It was

submitted by Mr July that Ex EGH3 in graphic detail outlines the plan to invade the

Caprivi Region and the connection between the UDP and the CLA is clearly

demonstrated by the remarks by Spiderman. Exhibit EGH 5 at point II appears the

following: “300 CLA members are ready if everything comes fruitful.” It was

submitted by Mr July that these documents are executive statements and admissible

as evidence against the accused. I agree.

[905] The accused elected not to testify. The evidence presented by the State is of

such a nature that it begs an explanation from the accused person, in particular the

documentary evidence. I am satisfied that in the absence of any evidence by the

accused, that the State has succeeded to prove the commission of the charges

against the accused beyond reasonable doubt in respect of overt acts and the

inference that same were committed with a hostile intent.

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Oscar Nyambe Puteho (accused no.72)

[906] It was submitted by Mr Samukange in his heads of argument that accused no

72 should have been acquitted in the application in terms of s. 174 because this

Court had at that stage relied on incorrect evidence. It was submitted that this Court

relied on the evidence of Exhibit EGJ 1-3 which exhibits relates to Martin

Tubaundule (accused no 71). It was submitted that the evidence led in respect of

accused no 71 was to the effect that he was in possession of a diary with a leather

cover and was also in possession of other handwritten documents which formed part

of exhibit EGJ 1-3 and that these documents related to the armed struggle in the

Caprivi Region. The material was sent to a handwriting expert who testified in Court

and concluded that the author of those documents was Martin Tubaundule (accused

no 71). It was submitted that accused no 72 was not found with any written material

and that no handwriting specimen was taken from him.

[907] Mr July conceded that Exhibit EGJ (1-3) was found to be authored by accused

no 71 but disagreed that there is no evidence which links the accused to the

offences charged. Mr July referred to Exhibit ENY (1) in support of his contention

that the accused went to Botswana with the group of 92. This exhibit, a newspaper

article, was received as an exhibit in a trial-within-a trial and it is trite law that such

evidence may not be used in the main trial. It was submitted that the accused was a

secretary in Dukwe as testified by Mwisepi. This evidence is insignificant. It was

submitted that the accused was in Zambia with Stephen Mamili in June 1999 when

he was supposed to have been in Dukwe. It was submitted that the accused was

arrested with other co-accused in Zambia and that this is not disputed.

[908] Mr Samukange in an alternative argument referred to the testimony of

Christopher Siboli who testified that the accused attended a meeting in Windhoek-

West during the year 1995 where the succession of the Caprivi was discussed. Mr.

Samukange submitted that is was put to Siboli during cross-examination that the

accused only attended the University of Namibia (UNAM) during the years 1996 until

1998 and thus could not have attended a meeting during 1995. Siboli replied 206:

“Yes, he is a student. It’s okay, it’s right.” It is not clear to me whether Siboli

conceded to the fact that the accused was a student at UNAM or to the fact that the

206 P.4483 lines 6-7.

324

accused was a student between the years 1996 until 1998. This Court was referred

to the testimony of Siboli during cross-examination by Mr Kauta in respect of the

Windhoek-West meeting when the witness was asked whether he attended only one

meeting with a Mr Mutame to which the witness replied that there is nothing he could

remember because it happened a long time ago. Siboli also could not remember

what decision was taken at that meeting.

[909] Mr Samukange submitted that Siboli is contradicted on another occasion

when he gave testimony in respect of Kopano ya Tou. This Court was referred to the

fact that the witness testified that he was present at Kopano ya Tou meetings where

the topic of secession was discussed. Siboli testified that he was not in the “old

army” but only did national service for one year. This evidence was contrasted with

the evidence of State witness David Simbulu, a former SWATF member, attached to

701 Battalion, who testified that the membership of Kopano ya tou was not open to

non 701 Battalion members. Siboli testified that he attended Kopano ya tou and

therefore Siboli could not have attended those meetings he had testified to. In view

of the answers given during cross-examination in respect of the Windhoek-West

meeting in 1995 and in the view that Siboli being a single witness in respect of that

incident, this court cannot rely on such testimony since it was not clear and

satisfactory in all material respects.

[910] Constance Kabuba Inyambo, a Zambian national, testified that in June 1999,

she was at her village, Nkanda in Katima Mulilo, Seseke district, Zambia, when they

received visitors. One was her cousin, Stephen Mamili. Thaddeus Ndala introduced

her to the others as Moses Mushakwa, Charles Mushakwe and Oscar Puteho. She

was informed that they were looking for a witch doctor. Her sister was with her at that

stage. She testified that the Zambian Police subsequently arrived at their court yard

and arrested these visitors. Ruth Lungowe Luyambo corroborated the evidence of

her sister, Constance, in material respects. She testified that Thaddeus Ndala

introduced Charles Mushakwa and Oscar Puleho to her and that this group was

subsequently arrested by the police on 18 June 1999. These two witnesses were not

asked to identify Oscar Puteho. According to their testimonies, the identities of the

members of the group were revealed by Thaddeus Ndala.

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[911] Mr July referred to the bail application (Exhibit B2) of the accused on 31 July

2000 in which the accused described how he fled to Botswana on 10 December

1998 due to harassment by members of the Namibian Police Force in Katima Mulilo.

The accused testified that after a few months at Dukwe, he left the refugee camp in

the year 1999 together with Charles Mushakwa destined for Zambia. They met other

accused persons in Kasani before they crossed the border into Zambia where they

stayed until they were arrested. During cross-examination by Mr Small, the accused

testified that they were five individuals including one Mamili who left for Zambia. He

testified that he met Thaddeus Siyoka Ndala in Kasani who was part of the group.

The accused testified that, though he had been granted political asylum in Botswana,

the conditions were unbearable and he left for Zambia in order to seek for political

asylum. The accused conceded that when he left Namibia for Botswana, he crossed

the border at an ungazetted border point, that he entered Botswana at an ungazetted

point, that he travelled on foot through the Caprivi region and entered Zambia from

the Caprivi region at a point not designated as a gazetted border point.

[912] The accused admitted that he was a member of UDP and that he agreed with

the aim of the UDP that the Caprivi should be a separate entity by “democratic

means”. His testimony was that he was an ordinary member of the UDP and was not

an office bearer. It was submitted by Mr July that the accused with the four other

individuals escaped from Botswana in order to prepare for the military attack which

took place on 2nd August 1999. Mr July also referred to Exhibit EGO 2 which reflects

that Oscar Puteho was one of those who were in the second group who escaped

from Botswana. Mr July submitted that p 10 of Exhibit EGO 2 refers to two Puteho’s,

namely Oscar and Muyuka and is indicative of the involvement of accused no.72. Mr

July submitted that the CLA was the military wing of the UDP and that in view of the

resolutions taken by the UDP on 1st and 20th January 1999, the accused was actively

working towards the achievement of those resolutions so adopted that the evidence

is sufficient to prove the involvement of the accused in secessionist activities.

[913] It is common cause that the accused was arrested during June 1999, together

with other accused persons, in Zambia. It is further common cause that the group

referred to as the ‘Stephen Mamili group’ was arrested in Zambia and handed over

to members of the Namibian Police during June 1999 consisted of, Stephen Mamili,

Moses Mushwena (accused no 12), Thaddeus Ndala (accused no.70), Martin

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Tubaundule (accused no.71), Charles Mushakwa (accused no.73) and Oscar

Nyambe Puteho (accused no 72). Stephen Mamili died whilst in detention after he

had been arrested by the Namibian Police.207 George Mundia testified in Court that

he is an immigration officer employed by the Zambian Government and is stationed

at Mungo Regional office in the Western Province of Zambia and was a member of

an advisory committee which advises the Provincial Joint Operations Committee. He

testified that the group of Stephen Mamili appeared before the advisory committee

and were questioned regarding their purpose of entering Zambia. Each one had a

similar story, namely that they had been granted asylum in Botswana but could not

accept the conditions there and decided to enter Zambia in order to seek asylum.

Each one of them then completed an immigration form called “Form 1”. These

documents were completed on 23 June 1999. He testified that the six Namibians

arrived the previous day under police escort from Katima Mulilo Police Station in

Zambia. He testified that their recommendation to the Chief Immigration Officer in

Lusaka was not to grant the six applicants asylum because false information was

provided when completing the immigration forms. The question which needs to be

considered at this stage is: did the State prove the commission of any of the offences

preferred against the accused person beyond reasonable doubt in the face of the

silence by the accused?

[914] The proven facts which this Court must accept is the following: the accused

fled to Botswana on 10 December 1999 and stayed for a few months in Dukwe. He

escaped and entered Zambia with co-accused persons and was arrested during

June 1999. His application for political asylum in Zambia was unsuccessful. He was

a member of the UDP. In order to answer above mentioned question, two other

questions need to be considered, namely: was an overt act proven and secondly,

was it proven beyond reasonable doubt that the accused had the required hostile

intent? The argument of the State is that the mere fact that an individual has fled to

Botswana constitutes to an overt act. In my view, this is a too broad and too general

statement which does not make provision for the fact that there may well be

exceptions to this contention. Even if it is accepted for the sake of the argument, that

this constitutes an overt act, can it then be inferred that the required hostile intention

was present beyond reasonable doubt?.

207 See the judgment delivered on 23 February 2004.

327

[915] Exhibit EGO2 is merely the confirmation of a common cause fact, namely,

that the accused had escaped from Dukwe. To infer that the accused was involved in

secessionist activities because he was a member of the UDP (an ordinary and

inactive member as reflected in Exhibit B2), would be to convict the accused by the

fact of his association to that political party. Even if it is accepted that the CLA was

the military wing of the UDP, is the only reasonable possible inference to be drawn

that the accused supported the secession of the Caprivi Region by violence? As

indicated above, hostile intention is the definitive element of the offence of high

treason and is a subjective element of that crime.

[916] I am not satisfied that such an inference may be drawn from the proven facts.

In my view, the State has not succeeded to prove the commission of the preferred

charges against the accused person beyond reasonable doubt, save for those

charges under the Immigration Act 7 of 1993.

Charles Mafenyeho Mushakwa (accused no.73)

[917] Oscar Mwisepi testified and identified the accused person as someone who

went to Zambia. It is common cause that the accused was in Zambia during June

1999. It is not disputed that the accused was together with accused no.72 when they

were arrested on 18 June 1999. It is also common cause that the accused who was

part of the Stephen Mamili group was handed over to members of the Namibian

Police Force by members of the Zambian Force on 7 August 1999.208 Christopher

Lifasi Siboli testified and stated that Charles Mushakwa was someone who recruited

persons for the CLA and that he was also a mobiliser of persons in connection with

the secession of the Caprivi Region. This witness identified Charles Mushakwa in

Court as accused no.73. This witness testified about a meeting held at the DTA

office in Katima Mulilo when John Samboma and Thaddeus Ndala returned with an

answer from Angola that weapons could be procured from Angola and that people

could go to Angola for military training. The witness testified that the accused was

one of the attendants at this meeting. It was submitted by Mr Samukange that the

evidence of this witness on this point stands uncorroborated by any testimony from

any other witnesses and reminded the Court that this witness’s evidence should be

treated with particular caution.

208 P.10 of judgment delivered on 23.2.2004

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[918] Oliver Munyandi Mbulunga testified that he (i.e. the witness himself) was in a

group of persons on their way to Angola led by John Samboma, who informed the

group that they were on their way to Angola for training and military assistance. The

witness testified that Charles Mushakwa was one of the members of this group

which consisted of about 60 individuals. According to this witness, they were first led

into Zambia and thereafter into Angola. He testified that John Samboma informed

them that the reason why military assistance was sought was to secede the Caprivi

“through fighting” and was informed that UNITA would provide the required military

assistance. This witness identified Charles Mushakwa in court as accused no.73.

This witness in his testimony gave a brief background of events which occurred prior

to him finding himself in the group of John Samboma. He testified that on 2 October

1998, he was at his village in Sinkoweka when Thaddeus Ndala arrived there and

used Osbert Likanyi to inform him about a DTA meeting the next day in Ngwezi. This

was however just a pretext.

[919] Mr Samukange in his heads of agreement submitted that it is common cause

that the accused no.73 was in prison in Zambia on 2 August 1999 and had been

there for some months and could not have participated in the planning and execution

of the events which took place on 2nd August 1999. It is indeed common cause that

the accused was in prison in Zambia on 2nd August 1999 but not for some months.

The evidence by accused no.72 (in the bail application) was that they arrived in

Zambia during June 1999. They were arrested on 18 June 1999 and handed over to

the members of the Namibia Police Force on 7 August 1999 which covers a period of

a few weeks. Nevertheless, the witness Mbulunga testified about events which

occurred shortly after 2nd October 1998. At that stage, the accused was not in

Zambia.

[920] It was also submitted that Mbulunga was unable to identify the accused

person. This is not correct. The record209 reflects that the accused was identified.

There was no confusion between Charles Mushakwa as accused no.73 and another

individual by the name of Christopher Mushakwa. Bernard Baleka Kanzeka testified

about a meeting during the year 1998 where the topic of secession was discussed

and where Charles Mushakwa was one of the attendants. This witness also testified

209 P.3148 lines 11-24 and 3149 lines 1-11.

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that Charles Mushakwa is known to him as a person who used to teach or to coach

people in Katima Mulilo to go to Botswana and thereafter to return to liberate the

Caprivi Region. This witness testified that he knows about this coaching because he

“found him busy teaching or coaching or mobilizing people”.210 This witness identified

Charles Mushakwa in court as accused no.73.

[921] It was submitted by Mr Samukange and correctly so, that this witness did not

identify the accused on the first day of his testimony. The witness however identified

the accused on the second day of his testimony and there is no evidence that that

was an erroneous identification. In Exhibit EGL, the following inscription appears in

the diary on the date of 28 October 1998:

“Mr Vincent Kasinanzi drove the President’s (car) bakkie he crossed Chobe river at

Libulibu into Botswana to Kasane where he joined the group of 92 CLM.”

[922] And on 29 October 1998 the following appears:

“We started from Satau to Kasane and we met The President Mishake Muyongo

- Keneth Sitali

Charles Mushakwa

Thaddeus Ndala

Mubuyaeta Muluhida

+/- 4 km to Kachikau

And then drove to Kasane Police Station.

Everybody was interrogated. Just after 17hrs, Chief Mamili arrived with Matomola Loozi and

Kelezu Immanuel. They were all interrogated and then after we slept in the prison hall.”

[923] These inscriptions appear in the diary of a co-accused (now deceased).

These inscriptions are executive in nature. The accused person did not testify. The

evidence presented by the state clearly called for answers by the accused person.

The evidence in my view establishes covert acts committed by the accused person.

The only reasonable inference to be drawn in view of this evidence is that it was

proven beyond reasonable doubt that the accused had the required hostile intent.

210 P.6067 lines 17-19.

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Clients of Mr Muluti.

Rafael Lyazwila Lifumbela (accused no.6)

[924] Lemmy Kasoondaha Haufiku testified that during the year 1999, he was

employed by the Ministry of Defence at Mpacha Military Base and held the rank of

Captain. On 2 August 1999, the military base came under attack. There was an

exchange of gunfire. Subsequently, four persons were captured, namely, Rafael

Lifumbela, Musheba Mwiya, Chris Ntaba and Sylvester Ngalaule. He testified that he

personally interrogated the captured persons and that Rafael Lifumbela gave him

certain information. He testified that a number of different types of material as items

found inside the premises of Mpacha Military base were seized. This witness

testified that three members of the “enemy” were killed and Rafael Lifumbela was

asked to identify the three corpses, which he did. Counsel who appeared on behalf

of the accused at stage, Ms Sithole – Mwenda, did not cross-examine this witness.

[925] Fabian Simana Libebe testified that he is employed by the Namibian Defence

Force and held the rank of full Corporal. On 2nd August 1999 about 03h00, he was

awaken by small arms fire. He received information that persons had been arrested

and were being kept in the conference room and went to the conference room.

Inside the conference room, he recognized Rafael Lifumbela because they had

worked together in the South African Defence Force (SADF) from 1981 until 1989 at

Mpacha Military Base. It was put on record by Mr January211 that the accused was

undefended at that stage and had absented himself (together with other accused

persons) from the proceedings without leave by the Court and that the State’s case

was prejudiced by their absence. I must add that this Court had impressed upon

accused persons in Court the importance of their presence during the criminal

proceedings and those accused persons had been informed of the provisions of

s.159 of Act 51 of 1977, but in spite of this information still chose to absent

themselves. The effect of the absence of this accused was that this witness was not

given the opportunity to identify the accused in Court.

[926] Moses Mulemwa Sesa testified that he was a member of the Namibian

Defence Force. On 2nd August 1999, he was at Mpacha Military Base. He had

arrived at Mpacha Military Base from Oamites Military Base on 31st July 1999. On 1st

211 P.16767 lines 14-20.

331

August 1999, he and other soldiers were deployed in the western part of Mpacha

military base. They were in the trenches when the base was attacked and remained

there until the morning. He went to the headquarters where he found the late Captain

Mwilima interrogating “suspected enemies”. He recognized his best friend Rafael

Lifumbela Lamzila as one of them. He testified that he and Rafael Lifumbela were

together in the SADF for some time and that they worked as radio operators. The

witness identified the accused person in Court.

[927] It was submitted by Mr Muluti that none of the witnesses who claimed that

accused no.6 was arrested were able to identify the accused. This contention is not

supported by the record. I need to comment on the absence of the accused person

at the stage when state witness Libebe gave his testimony. This accused person

consciously and deliberately chose to absent himself form the proceedings in spite of

the fact that this Court had impressed upon him (and the other accused persons in

the group) the importance why they should be present during the trial. This group

absented itself because they were dissatisfied about a ruling given in respect of an

application initiated by them. The State was prejudiced by the fact that the State

witness was not in a position to identify the accused in court. There is a

misconception that the issue of a fair trial should be considered exclusively from the

viewpoint of an accused person. This is wrong. One of the other parties with an

interest in a criminal trial, is the State which prosecutes on behalf of the Namibian

public. The accused, by absenting himself without leave from this Court, undermined

the fairness of the trial vis-à-vis the interests of the State. It appears that this

accused now wishes to benefit from his conduct by claiming that he was not

identified by a State witness in court. The accused, in my view, cannot cry foul

because the trial from his perspective is unfair where he himself through his very

own conduct, caused prejudice to the State case. His choice to absent himself from

the trial cannot be without certain consequences. One of these consequences, in my

view, is that the evidence against the accused by State witness Libebe stands

uncontroverted, namely that he recognized the accused on 2nd August 1999 inside

Mpacha military base.

[928] The evidence by Captain Haufiku to the effect that a person captured inside

the base, one Rafael Lifumbela, was asked to identify three corpses and which he

also did, stands uncontradicted since not one question was asked during cross-

332

examination by counsel Ms Silhole-Mwenda. The evidence by Moses Sesa that he

recognized his “best friend” Rafael Lifumbela, and the fact that he identified him in

Court stands uncontroverted. This witness was not cross-examined by counsel who

appeared on his behalf, but was cross-examined by Mr Neves in respect of his ability

to have recognized Rafael Lifumbela. It was not once put on record by either Ms

Sithole-Mwenda or by Mr Neves that the witness identified accused no 97 as

submitted by Mr Muluti in his heads of argument.

[929] It was submitted by Mr Muluti that the witness Libebe testified that he was 65

years old, that he would be able to identify Rafael Lifumbela if he could see him

closely, that he had problems with his eyes and as a result no identification took

place. This certainly would have been valid points to be considered in determining

why the witness failed to identify the accused person, if the accused person had

been present in Court at the time the witness was asked to identify Rafael Lifumbela.

It was, however, not disputed by any defence counsel that the accused no 6, Rafael

Lifumbela, was absent at the stage state witness Libebe was asked to identify him.

The prejudice to the State remains there. The submission by counsel that there is no

link to connect the Rafael Lifumbela arrested on 2nd August 1999, to accused no 6,

cannot be supported. The evidence established the contrary, namely, that Rafael

Lifumbela, accused no 6, was arrested inside Mpacha military base on 2nd August

1999 shortly after an attack on the military base.The submission by Mr. Muluti that

the final nail in the coffin of the State’s case was the failure to produce photographs

depicting the accused as one of the rebels captured at Mpacha on 2nd August 1999

does not detract from the cogency of the other evidence presented by the State.

[930] The accused elected to remain silent. I am satisfied that, in the absence, of

any evidence by the accused, that the evidence presented by the State has proven

beyond reasonable doubt the commission of the offences which will be stipulated

hereunder.

Francis Buitiko Pangala (accused no. 17)

[931] Walter Mwezi Sikochi testified that he observed Francis Pangala on the

evening of 1st August 1999 at Makanga when the final preparations for the attack the

next morning were made. The witness testified that Francis Pangala did not have a

333

firearm and that he did not know where Pangala went to. This witness identified

Francis Pangala as accused no. 17 in Court. The witness testified about a number of

persons whom he had found at Makanga including Hoster Sikunga and Jimmy

Siswaniso. It was submitted by Mr Muluti that a number of witnesses were called by

the State to testify against the accused, but that only two witnesses were able to

identify him in court. It was further submitted that the evidence of the witnesses

Thomas Franco Mukoya and Ivan Jona Twabulamayo Mate should be also excluded

at this stage as in the same way that their testimonies were excluded during the s.

174 application judgment due to the fact that they had been tortured. I have indicated

(supra) that their testimonies will be disregarded for the purpose of this judgment.

[932] The witnessess called, but failed to identify the person referred to as Francis

Pangala, were Hastingo Kufwa Kambukwa, John Mulauli Mwabela, and Mukushi

Events Kaine. In respect of the evidence of Walter Sikochi it was submitted by Mr

Muluti that his evidence that he had observed Hoster Sikunga and Jimmy Siswaniso

was undermined by the fact that both these person who were called as state

witnesses denied during their testimonies that they were ever at Makanga rebel

base. It was submitted that the reliability of Sikochi as far as his observation of

persons who were at Makanga has been undermined and discredited by those two

state witnesses. Mr July in his reply to the submission by Mr Muluti contended that

comparisons between the evidence of Walter Sikochi and Hoster Sikunga are

erroneous since the State had unsuccessfully attempted to declare Hoster Sikunga

as a hostile witness.

[933] It is indeed correct as stated by Mr July that this court in its ruling 212 in an

application to declare Hoster Sikunga a hostile witness found that there was no

evidence in support of the application to have the witness declared hostile. In respect

of State witness, Jimmy Siswaniso, the State also attempted to have him declared a

hostile witness. This court in its ruling213 directed that the witness statement the

State intended to use, must, in view of the denial by Siswaniso of having made such

a statement, first prove that the particular statement had been deposed to by

Siswaniso. This was not done. Both Hoster Sikunga and Jimmy Siswaniso testified

that on the evening of 1st August 1999 they were at home in their respective villages.

The fact that these state witnesses had not been declared hostile witnesses implies,

in my view, that their vica voce evidence stand as evidence presented by the State. 212 See judgment of 25 June 2008213 Ex tempore ruling of 25 September 2006

334

This evidence contradicts the evidence of Sikochi in so far as his testimony placed

Sikunga and Siswaniso at the scene at Makanga bushes. Sikochi is a single witness

in respect of his testimony that the accused was at Makanga the evening of 1 st

Augsut 1999. In view of the contradicting evidence of other state witnesses, this

Court cannot find that his testimony was clear and satisfactory in all material

respects.

[934] Given Lufela Ndugati testified that on the evening of 1st Augsut 1999 he was

at Makanga bush. One of the persons he had seen there was Jimmy Siswaniso who

had in his possession a ‘shell’. He also observed one Pangala which he identified as

the accused person.

[935] As indicated the State witness Siswaniso’s testimony that he was at his village

contradicts the testimony of Sikochi that he had seen Siswaniso at Makanga. The

testimony of Siswaniso implies that Sikochi was wrong when he testified that

Siswaniso was at Makanga bush. Mr July submitted that the reference by Mr Muluti

to Hoster Sikunga’s denial about not being at Makange or involved in the attacks is

disproved as his name appears on the deployment list Exhibit EGK1. The State

cannot at this stage and in his manner attempt to discredit Sikunga’s testimony. It is

inappropriate to do so. Sikunga is a witness called at the behest of the State. His

evidence was that he was not at Makanga. I need to remind the State what this

Court found in the application to have Sikochi declared a hostile witness. The

following appears from the summary of the judgment:

‘Application to have witness declared hostile. Witness implicated accused persons in

commission of crime (first statement). During vica vove evidence witness denounced

contents of first statement. Witness alleged he signed first statement in order to

prevent further assaults on him by police officers. Witness deposed to a subsequent

statement (second statement) disavowing contents of first statement and stating in

second statement that he had been forced to sign first statement. State in

possession to two statements, one favourable and one unfavourable to State’s case

prior to calling witness to testify – hazardous practice to call witness in these

circumstances. State had been forewarned that there is a very strong possibility that

witness may disavow first statement – took a calculated risk by calling witness.

Party entitled to apply to Court to have witness declared hostile where witness gives

unfavourable evidence contrary to what party calling witness expects – particularly

where unfavourable evidence comes as total surprise. State not surprised –

335

forewarned of the probabilities by witness. Application to have witness declared

hostile, dismissed.’

[936] The fact that the name of the witness Sikunga appears on Exhibit EGK(1) is

meaningless in view of his vica voce evidence to the contrary. In view of the

contradiction by Siswaniso the testimony of Ndungati must be approached with the

required caution. In the absence of any testimony by the accused person the test

remains: Has the evidence presented by the State proved the commission of the

preferred offences beyond a reasonable doubt? I am not satisfied that it does.

Sylvester Lusiku Ngalaule (accused no. 8)

[937] Johnny Katangala Shapaka employed by the NDF and who held the rank of

major during the year 1999 testified about the events at Mpacha military base on 2nd

August 1999. He testified that one of the investigators informed him of the name of

captured rebels including the name of Sylvester Ngalaule. This is obviously hearsay

evidence since this investigator’s identity is unknown. This witness also testified

about photographs in Exhibit Q. Another state witness called to testify against the

accused, was Lemmy Kasoondaha Haufiku, whose evidence was referred to (supra).

He testified that three of the rebels captured identified themselves as requested.

Once was Silvester Ngalaule. It was submitted by Mr Muluti, and correctly so that

this witness was not asked to identify Sylvester Ngalaule in court. It was submitted

that the State failed to establish a link between Sylveter Ngalaule and accused no. 8.

[938] It was submitted by Mr Muluti that it is common cause that photographs were

produced in court of weapons and other objects captured on 2nd August 1999 at

Mpacha Military Base and that the State produced photographs of the alleged rebels

killed, damages caused to buildings, as well as the photographs of accused no. 9

alleged to have been captured together with accused no. 6 and accused no. 8, but

that no photograph of accused no 8 was produced to validate and verify the

allegation that the was captured on 2nd August 1999 during the attack. This correctly

reflects the record. It was submitted that the State’s failure to produce any

photograph of accused no. 8 at Mpacha military base subsequent to his capture was

fatal. Mr Muluti submitted that state witnesses testified that photographs were taken

of all the rebels captured on 2nd Auugust 1999 at Mpacha Military Base but not one

depicting accused no. 8 was produced in Court.

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[939] I agree with Mr Muluti that the evidence presented by the State is of such a

nature that in the absence of any testimony by accused no. 8 it has not been proved

beyond reasonable doubt that the accused committed any of the preferred charges

against him.

Sikundeka John Samboma (accused no. 54)

[940] Christopher Siboli testified and reference was made to his testimony earlier.

In addition the witness testified to the following: During the first meeting in 1992 the

accused said he wholeheartedly accepts the idea of secceding the Caprivi from the

rest of Namibia. At the second meeting the accused donated money for the

acquisition of weapons from UNITA. During the year 1993, at a meeting which took

place at the DTA office in Katima Mulilo, the accused was one of the attendants

where the topic of discussion was the secession of the Caprivi Region. The witness

testified that during the year 1997 the accused was present at a meeting at the DTA

office where secession was discussed. The witness testified that the accused

attended meetings during the year 1998 where secession was discussed. At one of

the meetings the accused and Thaddeus Ndala reported that weapons had been

purchased, namely mortar pipes, handgranades and AK’s. Siboli testified to a

meeting at the DTA office where there was a discussion that weapons be exchanged

for diesel with UNITA – the accused informed the meeting of this option. According

to the witness it was decided that diesel should be stolen from the Government by

using fuel order books in particular from Zambezi, Shell Service Station.

[941] The witness testified about an occasion at Shell Filling Station in Katima

Mulilo where vehicles arrived and where drums were filled with diesel to be

exchanged for fire arms with UNITA and a number of persons had to be transported

as well. According to this witness the accused was present when this convoy left the

filling station for Singalamwe where those persons had to be off loaded. On their

way from the filling station they first stopped at Sentra shop where they collected

food which had already been paid for by the accused. The witness testified that at

the Kwando river they met members of UNITA where diesel was exchanged for

weapons and ammunition. Thaddeus Ndala and John Samboma spoke to the

members of UNITA. They returned to Singalamwe base. The accused testified that

he himself and the accused at a later stage came to visit Singalamwe in order to

ascertain the needs of the group they had left in Singalamwe.

337

[942] Mr Muluti in his heads of argument made reference to the heads of argument

of the State where a number of witnesses were referred to by the State on whose

testimonies the State relied in this trial. The witnesses who were called to testify

were Christopher Lifasi Siboli, Progress Muusu Mulonga, Olivier Munyanda

Mbulunga, Luwate Oscar Simbulu, Michael Maswabi Nuwe, Beauty Mukelabai

Munyandi, Robert Silo Fena Nyambe, Alfred Kupulo Kupulo, Oscar Munistitwela

Mwisepi, Paulo Frederick, Hamlet Kachibolewa Muzwaki and Beavan Moloki Nzie.

Mr Muluti submitted that in conforming with the ruling of this Court in the s. 174

application the evidence of witnesses who failed to make a positive identification of

the accused in court were excluded.

[943] Counsel submitted that only the evidence of the following witnesses therefor

should be considered by this Court namely Christopher Siboli, Oscar Mwisepi, Alfred

Kupulo, Oliver Mbulunga, Beauty Luyambo, Robert Nuambe, Oscar Simbulu, and

Beaven Nzie. It was submitted that the testimony of Siboli is riddled with material

contradictious, inconsistencies, lies and conjecture. I shall first summarized the

evidence of those who had identified John Samboma in court before considering the

submissions by Mr Muluti. I have referred to the evidence of these witnesses earlier

in this judgment.

[944] Luwabe Oscar Simbulu testified about an incident when he was a passenger

in a motor vehicle driven by Steven Kwala at night. At some point the vehicle

stopped, Kwala blew on a whistle and a number of people, including the accused,

emerged from the bushes. Thereafter this group of people, which included himself,

was led by the accused into Zambia and thereafter into Angola in order to receive

military training from UNITA, and to acquire weapons in order to secede Caprivi from

Namibia.

[945] Oliver Munyandi Mbulunga testified that he became aware of the idea to

secede Caprivi from Namibia during the year 1998. This witness testified about an

incident where he was picked up at night during October 1998 and was transported

with a vehicle to Masida where he found between 40 and 50 people in the bush. At

some stage the accused arrived there in a motor vehicle. Thereafter persons

boarded two motor vehicles and the accused told them that they were heading to

Angola for training. They drove to Singalamwe from where they entered Zambia and

eventually entered into Angola.

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[946] Robert Silofela Nyambe testified that during the years 1998 to 1999 he

resided at a place in Zambia, called Imushu. He knew the accused since the

accused had grown up in that village. The witness recounted that during the winter

in 1999 he had observed the accused going around in the villages collecting food

which he took to Nambumbwe Island, and observed the accused moving between

Namibia and Zambia. He observed that the accused was in possession of AK 47

rifle at a stage when the accused was in the company of Simisho, a Namibian

national. They exchanged greetings and then he continued with his journey.

[947] Beauty Mukelabai Munyandi testified that she resides in the village Kongola in

the Caprivi Region. During the years 1998 to 1999 she was in Zambia. At one point

during 1998 she decided to visit her parents at a place called Malonde in Zambia

where she saw the accused and one Isumushu. She recognized them from Kongola

in the Caprivi. On another occasion in 1999 she saw the accused with Isumushu and

twelve other people. The accused was in possession of two AK 47’s the other

people were carrying maize meal. She testified that at one stage she saw Akson

Masule taking food to the camp of the rebels at Nabumbwe in Zambia.

[948] On 30 July 1999 she and her husband decided to travel to Namibia. On her

way she saw people moving in three groups. The accused was in the first group. All

those in that group were carrying fire-arms and were heading in the direction of

Namibia. She testified that she saw the three groups at the “border of Singalamwe”

on the Zambian side. She testified that she knew accused since they were living

together and that the accused referred to her as his niece.

[949] Alfred Kupulo Kupulo testified about his journey in order to join the CLA. This

Court has earlier dealt with the testimony of this witness. The witness testified that

the accused was the leader of the group at Sachona and introduced himself to the

group by mentioning his name. He was a leader at Libulibu where after the killing of

Falali he gave the members of the CLA two options. He was the leader of the group

of 92 members of the CLA.

[950] The accused was at Mahalape prison in Botswana with other members of the

group of 92. Muyongo and Chief Mamili were also present. The accused told the

group of 92 that after their arrival in Botswana they must tell the Botswana Police

Force members that they left Caprivi because of harassment by the Namibia Police

339

Force members. It must be stated that this evidence of the witness Kupulo stands

uncontroverted.

[951] Beaven Moloki Nzie testified that he resided in the village Manzunzu in

Zambia during the year 1999. During that year soldiers of the Zambian Defence

Force came there at the village and were looking for John Samboma and his group.

The witness testified that he knew John Samboma as a pastor of the 7 th day Sabbath

Church. They handed rebels who were at the village over to the soldiers during

October 1999. John Samboma was not present but on an island ‘Nomansland

between Zambia and Angola’. He was requested by the soldiers to fetch Samboma.

He was unable to do so because Samboma had crossed over into Angolo. At a later

stage he saw the accused when he was handed over to the Zambian soldiers by

UNITA rebels. This witness was not cross-examined by any defence counsel.

[952] It was submitted by Mr Muluti that the identification by Beauty Munyandi is not

incriminating but confirmation that she knew accused no. 54 as they resided in the

same area of Kongola. In respect of her evidence that the accused was in

possession of fire-arms, it was submitted that the evidence of this witness

contradicted the evidence of Akson Masule. Counsel however submitted that the

evidence of witnesses should be excluded by this Court. Akson Masule was one of

those witnesses. On what basis can this Court now compare the evidence of these

two witnesses? Mr Muluti submitted that the reference to the 30 th of July 1999 her

testimony is highly improbable since this witness cannot read or recall dates of first

events. The date 30 July 1999 in the testimony of this witness may be explained as

counsel suggested, namely, that it was the prosecutor who led the evidence-in-chief

who introduced that date and not the witness herself. Mr Muluti further submitted that

this witness is unable to identify an AK 47 because she confirmed that she does not

know what an AK 47 is. This witness conceded that she could not distinguish

between an AK 47 and a hunting rifle. I must accept that the knowledge of this

witness in respect of fire-arms is limited and I cannot rely on her testimony that the

fire-arm which she saw was indeed an AK 47 fire-arm. This witness testified during

cross-examination by Mr Dube that she had seen police officers carrying fire-arms

and concluded those fire-arms to be AK 47’s since she only knew AK 47’s.

[953] It was however never during cross-examination put to the witness that she

had in fact observed no fire-arm in the possession of the accused person. The other

alleged contradictions referred to by counsel are in my view not material

340

contradictions which may impact upon the credibility of this witness. I agree that the

ability of this witness to recollect dates of past events is suspect and that this Court

has reason to approach her testimony with caution in so far as the recollection of

dates are concerned. However this court cannot disregard her evidence in toto.

What must be accepted is that this witness at some stage in Zambia observed the

accused in possession of a fire-arm or fire-arms. Mr Muluti submitted in respect of

the witness Siboli that he testified that the accused had recruited members for the

CLA since 1991-1998 but later changed that he only recruited during 1997.

[954] It was submitted that Siboli testified that the accused and Thaddeus Ndala in

1992 at a meeting at the DTA office in Katima Mulilo were appointed by Geoffrey

Mwilima to acquire weapons from UNITA, but later testified that a meeting took place

at the old house of Muyango where it was agreed that the accused and Thaddeus

Ndala should purchase fire-arms. It was submitted that Siboli testified that

subsequent to several meetings, it was resolved to get persons to go to Angola in

1997, that Siboli stated that no persons were secured in 1997 but later changed that

persons were taken to Angola in 1997. It was submitted that during cross-

examination Siboli admitted that Siboli during examination-in-chief denied that he

received any military training in his life, but under cross-examination admitted that he

received military training when he enrolled for national service and made a mistake

when he denied it.

[955] It was submitted that Siboli in cross-examination contradicted his evidence-in-

chief when he stated that the reason he did not go with the accused and Thaddeus

Ndala to purchase fire-arms was because his child was sick, but later changed that it

was due to the pregnancy of his wife. It was submitted that Siboli testified that he

took his wife to the village the afternoon before the attack but under cross-

examination testified that he took her to the village a week before the attack. It was

submitted that Siboli testified that in 1985 he attended only one meeting regarding

the issue of secession and that this contradicts his earlier testimony that he became

aware for the first time about the issue of secession in 1989. This was also in

contradiction of his evidence, it was submitted, during cross-examination that he

attended meetings about secession in 1987. It was submitted that Siboli has shown

to be an unreliable witness with poor memory and recollection of events, that he was

inconsistent and contradicted himself on several occasions.

341

[956] Mr Muluti further submitted that the evidence of the witnesses Oscar Simbula

and Oliver Mbulunga materially contradicted each other and two other state

witnesses and cannot safely be relied upon. It was submitted that Simbulu testified

that on a Saturday in October 1998 he boarded a vehicle which drove in the direction

of Kongola for approximately 70-75 km from Katima Mulilo. While there in the

vehicle he was travelling in, they found a 4X4 diesel pump vehicle driven by

Thaddeus Ndala. Mbulunga testified that on 2 October 1998 he became aware of

the idea to secede the Caprivi and was picked up at night on this date by Thaddeus

Ndala and Osbert Likanyi, to attend a DTA meeting at Katima Mulilo. The vehicle

was a white Hilux driven by Thaddeus Ndala. This vehicle instead drove on the

Sangwala-Kongola road and stopped at Masida, where they were instructed to

disembark from the vehicle and directed to walk towards the bush where he found

approximately 40 or 50 people. Simbulu testified that after they passed the vehicle

driven by Ndala who was alone in the vehicle, the driver blew a whistle and he saw

people emerging from the bushes with their travel bags and that he recognised

Moses Kayoka, John Samboma and Thaddeus Ndala. Counsel submitted that

Simbulu has contradicted himself since his earlier testimony was that Ndala was

sitting in a 4X4 diesel pump, but now Ndala was coming from the bushes.

[957] It is clear that the evidence relates to the same incident. Counsel cannot

deduce from the evidence that the place Simbulu travelled to on a Saturday in

October 1998 was indeed a place called Masida in the absence of direct testimony to

that effect. I do not see the contradiction as submitted by counsel. It was also

submitted that Mbulunga testified that before leaving Masida the accused informed

them that they were heading for Angola for training and upon arrival they numbered

approximately 60 persons. Mbungula has contradicted his earlier version, it was

submitted, where he stated they were approximately 40 or 50 and that he never

mentioned more people joined them at Masida. This alleged contradiction is in my

view of no consequence. The witness was clearly guessing the number of individuals

and did not commit himself to an exact number of people. It was submitted that

Simbulu testified that after they crossed the border of Namibia and Zambia they

heard two gunshots as a result of which Samboma told them to run, whilst Mbungula

never testified about this incident. In my view this is not a material contradiction.

[958] Mr Muluti referred to a number of other difference between the testimonies of

the witness Simbulu and that of Mbungula in respect of what was encountered

342

during their endeavours to obtain military assistance from UNITA and their journey

into Namibia. Mr Muluti also referred to the testimony of Kupulo and submitted that

his evidence in respect of the number of people he found at Sachona differed from

the number of people testified to by Simbulu – I have pointed out (supra) that the

testimonies referred to approximate figures and is immaterial. Mr Muluti submitted

that Kupulo testified about the type and number of weapons seen by him a Sachona

whilst Mbungula’s testimony who also testified about weapons which were brought

from UNITA does not correspondence with that of Kupulo. The mere fact that their

testimonies differ does not imply that their testimonies are not trustworthy. It all

depends upon the circumstances when they made their respective observations.

[959] Oscar Mwisepi testified that the accused was the leader of the 92 members of

the CLA and that he escaped from Gaborone to Namibia. It was submitted by Mr

Muluti that during cross-examination Mwisepi’s evidence was that he was not

amongst the group of 92 and that the evidence of Mwisepi that the accused was the

leader is therefore hearsay evidence and inadmissible. It was submitted that the

evidence that the accused escaped from Gaborone is also hearsay evidence. I

agree with the submission made by counsel. In respect of the witness Nyombe it was

submitted by Mr Muluti that he contradicted himself.

[960] In a bail application (Exhibit F4) on 20 September 1999 Aggrey Makendano

testified that on 12 August 1999 he reported himself to the police. He testified that

he was in Dukwe but left Dukwe in June 1998 and went to Zambia. He testified that

he was a member of the Caprivi Liberation Movement (CLM). He testified that he

went to Dukwe for the purpose of liberating the Caprivi region. He testified that their

leader was John Samboma and that in Zambia they received training from John

Samboma. Exhibit ETC consists of a number of documents one of which was a

document of minutes taken by Stephen Mamili the Secretary General of the UDP on

1 January 1999 at the Kagisong Centre, Mogodithsane in Botswana. One of the

members present was John Samboma. Muyongo and Chief Mamili were also

present. It reflects the following:

‘Liberation of Caprivi needs commitment which is total. The struggle can be long and

can be short. The people here in Kagisong are the leaders who will be accountable

for everything that will take place.’

‘Review of 1998:

343

-The year 1998 will be the year to be remembered for a long time to come. Plans to

liberate Caprivi started in 1991 and 1998 was intended to be a year of

implementation. Also in 1998 a group of soldiers was organised as Caprivi Liberation

Army.’

‘The way ahead:

The UDP will not leave a stone unturned in the process of liberating the Caprivi from

the Ovambos. The President emphasises that it is to look for ways and means

including democracy and armed struggle.

. . .

In our liberation struggle the key one is the barrel of the gun as a result our people at

home will be on high risk being targets of our enemies and we should inform them.’

[961] Section 246 of Act 51 of 1977 reads as follows:

‘246. Presumptions relating to certain documents.-

Any document, including any book, pamphlet, letter, circular letter, list, record,

placard or poster, which was at any time on premises occupied by any association of

persons, incorporated or unincorporated, or in the possession or under the control of any

office-bearer, officer or member of such association, and-

(a) on the face whereof a person of a name corresponding to that of an

accused person appears to be a member or an office-bearer of such

association, shall, upon the mere production thereof by the prosecution at

criminal proceedings, he prima facie that the accused is a member of an

office-bearer of such association, as the case may be;

(b) on the face whereof a person of a name corresponding to that of an

accused person who is or was a member of such association, appears to be

the author of such document, shall, upon the mere production thereof by the

prosecution at criminal proceedings, be prima facie proof that the accused is

the author thereof;

(c) which on the face thereof appears to be the minutes or a copy of or an

extract from the minutes of a meeting of such association or of any committee

thereof, shall, upon the mere production thereof by the prosecution at criminal

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proceedings, be prima facie proof of the holding of such meeting and of the

proceedings thereat;

(d) which on the face thereof discloses any object of such association,

shall, upon the mere production thereof by the prosecution at criminal

proceedings, be prima facie proof that the said object is an object of such

association.’

[962] The effect of this section is that Exhibit ETC became admissible by its mere

submission and thereby became prima facie proof. Mr Muluti submitted that Exhibit

ETC is a narrative statement as opposed to an executive statement. I do not agree.

It refers to the establishment of a fighting force through which the Caprivi region was

to be liberated and spelled out the way ahead i.e. the future plan of action. It is in my

view an executive statement. Exhibit EGF (7) at p 52 of whom the author is

Thaddeus Ndala (accused no 70) reflects that John Samboma was the leader of a

group of 4 men who went to Angola to look for a suitable place at the UNITA camp.

Exhibit EGF(8) by the same author which relates to the ‘history of the first CLA

commando’s for independence struggle’ at p 9.

‘John Samboma who was the leader of the group crossed over to Angola leaving the

whole group, there to go and look for a suitable place somewhere in Angola next to

the Namibia/Angola border.’

[963] This is a confirmation of leadership role played by the accused as testified to

by the state witnesses. Exhibit EGF (8) at p 23 reflects the following on Tuesday 24

November 1998:

‘The lady from the UNHCR in Botswana came to visit us at Mahalape prison at

16h30. She was met by Mr. Muyongo, Chief Mamili B, John Samboma, Ndala Ovens,

Malubita Conrad, Kachiolwa Geoffrey and Steve Mamili.’

[964] This is confirmation that the accused was at Mahalapi prison as testified to by

Kapulo. In Exhibit EGO, the following appears of p. 3 of the translation:

‘We left this camp because the water ran out. We went to Singalamwe at the border.

Others went to buy some AK 74’s from Angolans. The number came to 10+4=14. We then

went to SASHA CAMP, Samboma asked for accommodation form Captain Kambinda.

Kambinda declined, until the UNITA superior accepted that is when I could do. We

requested from the ‘Induna’ i.e. Induna Imushu, he gave us an Island near Sasha

Camp/UNITA.’

345

And at p 4:

‘At the camp we found 45+3=48 people. There was no relish apart from salt only.

John Samboma requested pots from his extended family members a big gun and a

small one, because John Samboma comes from Zambia.’

[965] This excerpt corroborates the evidence of Nyambe that the accused collected

food which he took to Nambumbwe island. The evidence of Kupulo, as indicated

earlier, stands uncontroverted. Even if I were to disregard the testimonies of Siboli

and Mwisepi, the rest of the evidence against the accused clearly required an

answer from him. Accused no. 11 a self-confessed member of the CLM testified that

his leader was John Samboma. Kupulo who was part of the group of 92 testified that

the accused was the leader of the group. Exhibit EGF(8) supports the evidence of

state witnesses that the accused led an excursion into Angola in order to make

contact with UNITA with the view of procuring weapons and other military

assistance.

[966] I am satisfied that a very strong prima facie case has been established which

clearly requires an answer from the accused. The accused elected not to testify. I am

satisfied that in the absence of any evidence by the accused person, that the State

succeed in proving the commission of the crime of high treason beyond reasonable

doubt.

Clients of Mr Kavendji.

George Masialeti Liseho (accused no. 15)

[967] Dominikus Mwaposi Liseli, a police officer attached to the Special Field Force

testified that he was stationed at Ngama Border post on 2 March 2000 when he was

approached by two persons wearing the uniform of Rhino Security Company. They

had a shotgun. One person identified him by way of an identity document and the

other person gave his name as George Liseho Masialeti. This witness then testified

about information he received from this individual elicited by the police officer which

this court, during the judgment in terms of the s. 174 application, found to be an

inadmissible confession. The evidence of this witness was in any event not linked to

any accused person before court. The “evidence” of this witness is therefore

excluded.

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[968] Ruben Bakububa Sikwela testified that he was in a group which attacked the

Katonyana Police base on 2nd August 1999. This witness as previously indicated

was severely beaten prior to him giving his record witness statement to the members

of the investigating team. I have indicated in my judgment in the s. 174 application

that the evidence of this witness was to be excluded on the basis of his torture by

members of the police force. Thus on this basis any incriminating evidence against

accused by this witness is excluded.

[969] Bornbright Mutendelwa Kufwa testified that he saw George Liseho at

Makanga on the night of 1st August 1999 and that he was in possession of a fire arm.

George Liseho was identified by this witness in Court as accused no. 15. This

witness testified that he was approached by the police on 22 August 1999. He was

not interviewed but assaulted, arrested and thrown in a cell where he remained for

nineteen days. He was not interviewed or asked anything relating to the attack and

was released. The witness testified that he suffered an injury to the knee and

showed the injury to court. There is in my considered view no indication that this

witness has provided any statement to the police as a result of assaults perpetrated

on him. There is no evidence that the assaults were perpetrated for the purpose of

obtaining from this witness information or a confession, neither does the evidence

indicate that Constitutional provisions had been violated.

[970] It was submitted by Mr Kavendjii that the evidence of this witness should be

treated with extreme caution firstly because he is an accomplice witness, secondly,

because his identification of the accused is highly suspect, and thirdly, because he

was a poor and unreliable witness. It was submitted that the witness testified that he

was at the Makango bushes and saw Jimmy Siswaniso there. Jimmy Siswaniso

contradicted the testimony of this witness. The staff then tried in vain to have Jimmy

Siswaniso declared a hostile witness. It was further pointed out that this witness

testified that he saw Hoster Sikunga at Makanga bush on the night of 1st August

1999. Again when Hoster Sikunga was called to testify by the State with the sole

aim to corroborate the evidence of this witness, Sikunga contradicted the evidence of

this witness and the State failed again to have Hoster Sikunga declared a hostile

witness.

[971] It was submitted that the State, for the sake of expediency, would like this

Court to forget this materially contradicting and destructive evidence, and that is why

there is no attempt to explain these contradictious, or at least to advance arguments

347

as to which evidence this Court must have regard to. I have, when I dealt with the

evidence against accused no. 17, concluded that this court cannot disregard the viva

voce evidence presented by the State to the effect that Siswaniso and Sikunga were

not at Makanga bush on 1st August 1999. I must therefore also concluded that the

evidence of this witness is not clear and satisfactory in all material respects.

[972] Given Lufela Ndungati testified that he saw George Liseho at Makanga. This

witness recognized the accused person as the George Liselo who was at Makanga

during the period when he was there. It was submitted by Mr Kavendjii that this

witness testified that Jimmy Siswaniso was in the group of people who went to attack

the police station and that Jimmy Siswaniso was holding a “shell” at Makanga. At

the police station himself, Jimmy Siswaniso and Roster Kufwa were hiding in small

shrubs.

[973] It was submitted that this evidence was not corroborated by Jimmy Siswaniso

(co-accused) who testified that he was never at Makanga bushes or close to any

place that was attacked. It was submitted by counsel, and correctly so, that this

Court cannot without any basis provided by the State conclude that the testimony of

Jimmy Siswaniso must be excluded, and that the testimony of this witness must be

accepted, especially if the evidence tendered relates to the same events or

occurrences. I agree with counsel that the contradictions are not mere bona fide

errors.

[974] Hestings Kulwa Kambulwe testified that he was at Makanga on 1st August

1999 and that George Liseho was one of the individuals at Makanga. It was

apparent during cross-examination that this witness was brutally assaulted by

members of the police force. He testified that he had informed the prosecutors that

he was assaulted by the police during the recording of his statement. This witness

failed to identify George Liseho as one of the accused person before Court.

[975] Ivan Jona Twabulamayo Mate testified that he recognized George Liseho at

Sachona where he was together with other individuals with the purpose to secede

the Caprivi from Namibia. This witness identified George Liseho as accused no. 15

in court. During cross-examination this witness testified that he had been assaulted

by members of the police force with a sjambok prior to the police extracting a

statement from him. This Court previously ruled that the evidence of this witness be

excluded. Frederick Nkona Muhupulo testified that he attended the funeral of Freddie

348

Liseho. After the funeral George Liseho gave him an AK 47. He was arrested

during March 2000 for the unlawful possession of a fire-arm and was convicted. This

witness testified during cross-examination that he received the fire-arm from one

George Moniker. It appears from the testimony of this witness that George Moniker

and George Liseho are two different individuals. The witness testified that the fire-

arm which was collected by the police was the fire-arm he had received from George

Moniker.

[976] It was submitted by Mr Kavendjii that it is logically impossible for one person

to receive the same fire-arm from two different persons at the same time. It was

submitted that no explanation was proferred during re-examination as to why the

witness testified that he received the fire-arm from George Moniker, that it was not

established through any evidence who this George Moniker is, that it was not

established that Liseho Moniker which appeared on the deployment list and the

George Moniker mentioned by this witness during his testimony is the same person.

It was submitted (a submission with which I agree) that there is no proof that it was

the accused who handed over the AK 47 to this witness.

[977] Walter Mwezi Sikochi testified that he recognized four people form the village

Makanga on 1st August 1999, one of whom was Liseho George. It was submitted by

Mr Kavendjii in his heads of argument that the evidence of Sikochi must be treated

with caution because he is a self-confessed criminal who gave information to the

police and later testified in order to save his own soul214, that the identification of the

witness in Court was not independent but was facilitated by the underhand tactics of

the prosecution, by using a photo album,215 that on his own version he is a corrupt

person who got employment in the police force by paying a bribe216, and that it is his

testimony that the police were putting certain things to him and he merely had to

confirm those things because of the fear to go to the cells.217 At the risk of being

repetitive I need to emphasize parts of certain judgments referred to (supra) in

connection with the evaluation of evidence where an accused has exercised his or

her constitutional right not to testify.

[978] In Brown (supra) it was stated that what the Court is really called upon to

decide whether the uncontradicted prima facie case of the prosecution must harden

214 p 11326215 p 11337-11338216 p 11351-11352217 p 11355 lines 3-16

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into proof beyond reasonable doubt. But whether this prima facie evidence must

harden into proof beyond reasonable doubt, in my view, must depend on the

passage in Boesak where the following appears:

“If there is evidence calling for an answer, and an accused person chooses to

remain silent in the face of such evidence, a court may well be entitled to

conclude that the evidence is sufficient in the absence of an explanation to prove

the guilt of the accused. Whether such conclusion is justified will depend on the

weight of the evidence.”

(emphasis provided)

[979] It should be noted that the use of the word “may” is in my view indicative of a

discretion which must be exercised judicially by the court, and that a court must

decide what weight to attach to the evidence. The critisism of the evidence Sikochi

is not without merit, but his does not mean that this court should reject the evidence

of Sikochi as a whole. It may though generate some doubt as to whether such

evidence may safely be accepted by this Court.

[980] I also need to comment on a submission made in the heads of argument of

the State and I must say that this is not an isolated instance. The State in support of

its argument that the accused stands to be convicted referred to the evidence of

Lemmy Haufiku a member of the Namibian Police who testified that he accused had

stated that he went to Botswana because of Muyongo who said that they should go

to Botswana to come back and fight to cut Caprivi from Namibia. Haufiku also

testified that the accused acknowledged that he was a member of the CLA and that

he partook in the attack at Mpacha. Haufiku at that stage was a non- commissioned

officer and counsel should know that evidence of an inadmissible confession cannot

be argued in Court, neither should it appear in heads of argument. The State in their

heads of argument referred this Court to the evidence of testimonies in chief as

implicating accused persons in the commission of offences ignoring the findings by

this Court that the testimonies of those witnesses be disregarded since it was

revealed during cross-examination that those witnesses had been severely tortured

prior to the extraction of witness statements by members of the police. I get the

impression that counsel in these instances refers to the testimonies-in-chief of these

witnesses, and is for some reason, reluctant to accept the findings of this Court to

the effect that the testimonies of those witnesses are to be excluded.

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[981] I have referred to the deficiencies of the state witness (supra) and that the

evidence of these witnesses, save possibly that of Sikochi, does not warrant a reply

from the accused. In respect of the testimony of Sikochi for the reasons mentioned

(supra) this Court should approach it with caution. I am not convinced that the weight

to be attached to the evidence of Sikochi is of such a nature that it requires a reply

form the accused person. It was submitted by Mr July that there is direct evidence

that the accused was in Botswana as a refugee and that he returned to Namibia

without having applied for voluntary repatriation. This appears to be common cause.

[982] I am not convinced that the State has proved the commission of the charges

preferred against the accused, same those contraventions in terms of the

Immigration Act, Act 7 of 1993.

Austen Lemuha Ziezo (accused no. 121)

[983] Mukushi Events Kaine testified that he was at Makanga on 1st August 1999

where he saw approximately 50 person in the bush where he recognised Austen

Ziezo. This witness when given the opportunity failed to identify Austen Ziezo as one

of the accused persons before court. Ruben Bakabuba Sikwela testified about

events which developed on 1st August 1999 and gave incriminating evidence

regarding the involvement of Austen Ziezo whom he had identified in court as

accused no 121. This court cannot for reasons mentioned earlier, consider the

testimony of this witness in determining whether the State has discharged its onus.

[984] Bornbright Mutendelwa Kufwa testified that on the night of 1st August 1999

Richard Misuha and a friend requested him to accompany them. These two

individuals were armed. They subsequently went into the bush at Makanga. He was

in a group assigned to attack Wanela Border Post. He boarded a Toyota Hilux white

in colour with registration number N 133 KM and they disembarked at Engen Service

Station in Katima Mulilo. They were informed to go to the shopping centre. Some

members of the group were armed while others were unarmed. This witness testified

that Austen Ziezo was one of the individuals at Makanga. This witness identified

Austen Ziezo as accused no 121 in court. This witness was assaulted but as

previously stated and for the reasons mentioned, the evidence of this witness is

accepted despite the allegation of an assault. This witness testified that at Makanga

the accused had nothing in his possession.

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[985] Mr Kavendjii referred to the testimony of this witness to the effect that Jimmy

Siswaniso was observed by this witness and incorporates the same argument when

he dealt with the accused no 15, George Liseho. Given Lufela Ndungati testified

about how he was collected at night to go to Makanga bush where he was assigned

to attach the police station. He was asked during his evidence-in-chief to name the

people at Makanga who were from his village. He did not mention the name of the

accused person. He, however, identified the accused as one of the persons he had

seen at Makanga bush and pointed him out in court. Later during cross-examination

he changed his testimony, saying that he doesn’t know Austen Ziezo and that he did

not see him at Makanga bush. This witness further testified about their journey to the

police station and what transpired there.

[986] In view of the material contradiction by this witness, in respect of the issue of

the presence of the accused at Makanga bush, this court will disregard that part of

his testimony and the testimony of the participation of the accused in subsequent

events. The State in their heads of argument referred to the testimony of a state

witness namely Thomas Franco Mukoya, whose testimony this court has found to be

inadmissible due to torture perpetrated on him.

[987] John Mulanti Mwabela testified about the events on 1st August 1999 at

Makanga and the persons he had observed there. This witness was however unable

to identify the person he referred to as Austen Ziezo, in court. Michael Malubeka

Ziezo testified about a meeting addressed by Muyongo and where Austen Ziezo was

one of the attendants. According to this witness Austen Ziezo raised his hand in

agreement with what was said by Muyongo. This witness when given the opportunity

to do so, failed to identify Austen Ziezo as one of the accused persons before court.

[988] Andreas Nelumbu testified that as a member of the Namibian Police Force he

was stationed during the year 2001 at the Trans Kalahari Police station at the border

post. On 25 August 2001 he received a phone call from one Hangero the Principal

Immigration Officer at the border post and as a result drove to the border post which

is about 500 meters from the police station. At the border post he found two

gentlemen with emergency travel documents in their possession issued by the

Namibian Ministry of Home Affairs. These documents reflected the identities of these

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two individuals as Ziezo Austen Lemuha and Brendan Luyanda respectively. He

asked them why they had returned from Botswana and they explained to him that

they sought political asylum and that they had decided to leave Namibia due to

harassment by members of the Namibian Police Force. This witness testified that

these two persons were eventually transported to Windhoek.

[989] Exhibit EEV is a list containing voluntary repatriation application forms and it

appears from this list that the accused person returned to Namibia after applying for

repatriation on 8 June 1999. It was submitted by Mr July that the accused was

incriminated by accused no. 120 to have been during the attacks at Mpacha with

reference to the evidence of the witness Michael Maluboka Ziezo. This witness

testified about a conversation he had with one Brandan Luyanda at the house of

Luyanda at about 10h00 on 2 August 1999 when the witness asked Luyanda where

he came from. According to this witness Luyanda replied that he came from Mpacha

Military Base where they attacke, but that matters did not go according to plan, that

they had failed, that the charms did not work very well, and that they ran away from

that place. The witness testified that he told him that he was with Austen Ziezo (p

711). A person by the name of Brendan Luyanda Luyanda is before this court as

accused no. 120.

[990] Mr July in his heads of argument (in reply) submitted that the accused made

an undisputed confession as well. This court was not referred to any document

which reflects such a confession. If the confession is what the witness, Michael Ziezo

had heard from Brendan Muyanda, I should point out that a confession is admissible

only against its maker and cannot be used to implicate a co-accused. Brendan

Luyando did not testify. Therefor what was allegedly said by the witness amounts to

inadmissible hearsay evidence. Michael Ziezo in any event failed to identify the

person he referred to in his evidence-in-chief as Brendan Luyando as any one of the

accused persons before court.

[991] My remarks in respect of the witness Bornbright Kufwa when I dealt with the

evidence against accused no 15 apply with the same effect in respect of this

accused. The accused did not testify. I am not satisfied that the State presented

evidence against the accused person which required an answer from him. The State

has failed to prove the commission of the offences preferred against the accused,

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save for a contravention made in Immigration Act, Act 7 of 1993. Ziezo testified that

when he at a later stage asked Austen Ziezo what was on his face Ziezo responded

by saying that it was not his business and said that he was coming from Makanga.

Aggrey Kayaba Makendano (accused no. 11)

[992] Ruben Bakabuba Sikwela testified that he saw Aggrey Makendano at

Makanga rebel camp and that Makendano had a fire-arm which looked like an AK

47. This witness identified Aggrey Makendano in court as accused no. 11. This

witness during cross-examination testified that he had severely been assaulted by

the police prior to deposing to his witness statement. The evidence of this witness

will be disregarded.

[993] John Mulauti Mwabela testified that on the night of 1 August 1999 he was in

the group assigned to attack the town centre. He recognized Aggrey Makendano.

This witness however failed to identify Aggrey Makendano as an accused person

before court. Hastings Kufwa Kambukwe testified that he was collected from his

house by one Osbert during the night of 31 July 1999. At Makanga he was placed in

the group that went to attack Mpacha military base. He testified that Aggrey

Makendano was at Makanga. This witness failed to identify Aggrey Makendano in

court. The evidence of this witness was excluded during the s. 174 application in

view of the fact that his witness’ statement was extracted from him after he had been

severely tortured by members of the Namibian Police.

[994] Thomas Franco Mukoya testified that the was collected from his village during

the night of 1st August 1999. At Makanga he was allocated to a group which was to

attack Mpacha military base. Aggrey Makendano was there at Makanga. This

witness identified Aggrey Makendano in court as accused no. 11. In the s. 174

application, the evidence of this witness was excluded due to the fact that the

witness had been severely assaulted by members of the Namibia Police Force prior

to deposing to his witness statement. Given Lufela Ndungati testified that at

Makanga he was allocated to the group which was destined to attack the police

station. Aggrey Makendano was the leader of this group and was armed. This

witness failed to identify Aggrey Makendano as one of the accused persons in court.

354

[995] Lovemore Lutumbo Litabula’s testimony was dealt with earlier at para [491].

According to his evidence the accused person, whom he had identified in court, was

near the police station that evening together with other individuals and the accused

was armed. He subsequently heard shots coming from the police station. In the

morning (i. e. a few hours later) when he reported for duty, he observed blood in the

charge office. It is not disputed that police officers had been killed at the police

station. I also dealt with the criticism by counsel in respect of the evidence of this

witness. Peter Siswaniso Munenda testified that during the year 1998 he was

approached by Aggrey Makendano and another person, Petros Ngoshi, who had

asked him to go to Dukwe with the purpose of liberating the Caprivi Region. He was

informed, according to him, that when he returned he would be expected to fight the

Government of Namibia. He testified that he did not respond because he did not take

what they told him as serious. He testified that Aggrey Makendano was from

Sachona village and was a teacher. He was not asked to identify Aggrey

Makendando.

[996] Kennethy Malumo Matengu testified that during the year 1998 Muyongo

resigned from the DTA and addressed a public meeting at Sachona where he gave

reasons for his resignation. During the year 1999 he saw his uncle, Oscar Puteho

Muyuka, coming from Zambia and entered his (i.e. Muyuka’s) house. There were

other people inside the house including one Aggrey Makendano. Puteho informed

them about his group from Zambia who were soldiers destined to fight for Caprivi.

Puteho and Aggrey Makendano told them that their idea was to look for a camp at

Sachona from where they could fight. Inside the house they concealed firearms in

the witness’s bedroom. Aggrey Makendano was in possession of an AK 47 and two

extra magazines. The witness testified that he knows Aggrey Makendano and that

Makendao hails from Sachona. When given the opportunity to identify Aggrey

Makendano, the witness failed to do so.

[997] Walter Mwezi Sikochi testified that he was at Makanga bush on the evening

prior to the attack where he saw Aggrey Makendano and saw Makendano again the

next day. According to him, Makendano was standing very far from him. The

circumstances under which he saw Makendano the next day does not appear from

the record. At that stage the accused was not armed and the witness did not speak

to him. Ivan Jona Twabulmayo Mate testified that at Sachona he came to know a

355

person by the name of Aggrey Makendano from Sachona; they left for Makanga after

spending two days at Sachona. He stayed for another two days at Makanga. He

was not divided into a group. The person by the name of Aggrey Makendano was

also present at Makanga. The witness was unable to identify Aggrey Makendao in

court. It emerged during cross-examination that this witness was brutally assaulted

by members of the Namibia Police Force. His evidence was ruled inadmissible in

the s. 174 application

[998] In respect of the witness Walter Sikochi, Mr Kavendji reminded the court to

approach his evidence with caution and in support of this submission, repeated his

argument when he dealt with the evidence against accused no’s 15 and 121. In

respect of the evidence of Lovemore Litabula, Mr Kavendji referred to the cross-

examination of Mr McNally in support of his submission that the evidence of this

witness is riddled with distortions and untruths. Counsel further submitted that the

testimonies of Lovemore Litabula and that of Given Lufela Ndungati differ on the

most crucial aspect namely whether or not the accused was at Katima Mulilo police

station.

[999] Fedelis Mujiwa Sinvula was called as a witness by Aggrey Makendano,

accused no 11. Sinvula’s testimony relates to his own employment in the Ministry of

Education since the year 1985 and at the different schools he had taught as a

teacher over the subsequent years until he was transferred to Silumbi Combined

school during January 2011. He testified that he knew Aggrey Makendano since his

elder sister got married to Pastor Frank Makumba Mushandikwe who is a cousin of

Aggrey Makendano. He then testified about the educational background of the

accused including the tertiary education of the accused at the University of Namibia

from 1995 until 1997 and that the accused at a certain stage came to teach at

Mayuni Senior Secondary school in February 1998.

[1000] He testified about the preferences of the schools on the accused’s application

form for employement, namely, Sikosiyana Senior Secondary School, Simataa

Senior Secondary School and Mayuni Senior Secondary School. He testified that the

accused was employed there from 4 February 1998 until 31 December 1998 as a

temporary teacher. According to this witness, he did not know that the accused had

been employed at some other school than Mayuni Senior Secondary School or any

356

other institution during the years 1991-1998. The witness testified that Immanuel

Makendano is the elder brother of accused no 11 and that Immanuel Makendano

was employed by Katima Mulilo Town Council. Certain documents were received as

exhibits.

[1001] During cross examination, the accused testified that he was in the defence

force as a section leader during January 1985 until 31 March 1990 – until the

demobilization of the force, when he was confronted with a document to this effect.

The testimony of this witness in my view does not assist the accused in respect of

any defences which possibly could have been raised by the accused.

[1002] I agree with the submission by Mr Kavendji that from all the witnesses called

by the State, this Court only need to consider the testimonies of three witnesses,

namely, Walter Sikochi, Lovemore Litabula and Christopher Siboli. Mr July in his

heads of argument referred this court to a number of occasions accused no. 11 had

addressed this Court and where he stated that Caprivi is not part of Namibia, that

they are not part of this trial, and that they should not be called to cross-examine

witnesses. This was said by the accused as spokesperson on behalf of the

previously undefended 31 accused persons. Reference was made to the record:218 219

‘. . .we ask to be referred to another judge who will listen to our political views . . .

because we believe that we are Caprivians and we are not criminals that we should

be forced to be tried or prosecuted (indistinct) criminal court of Namibia . . . ‘

and

‘Therefore, we the thirty one plus and twelve other Caprivians who are here in this

court and the twelve who are there in Windhoek Prison currently, all those exiled

Caprivians elsewhere in the world are they need total freedom and independency of

Caprivi because historically, geographically, linguistically traditionally, culturally,

linguistically and ethnically Caprivi was not part and is not part of Namibia shall never

be part of Namibia by force. My Lord the Caprivians are entitled to be independent

and with the same total freedom and independency like other countries. We want to

be masters and developers of our own motherland, we deserve the rights to elect our

own leaders in our country, Caprivi.’

218 P 11217 lines 16-23219 P 11223 lines 13-24 and p 11224 line 6

357

[1003] It was submitted by Mr Kavendji that nothing more should be read into the

addresses by the accused other than a confirmation of his challenge to the

jurisdiction of this Court. However, what was said by accused no. 11 must be seen in

context. The underlying motive of this attack on Katima Mulilo on 2 August 1999 was

a consequence of a political agenda of the UDP and in particular its leader at that

stage, Mishake Muyongo. Muyongo arrived in Namibia from exile just before the

elections at the end of 1989 with the aim to secede the Caprivi Region from the rest

of Namibia. This was the testimony of Geoffrey Mwilima. Muyongo was dissuaded

and agreed to participate in democratic elections. It appears with the wisdom of

hindsight that this idea of secceding the Caprivi Region was never abandoned. The

evidence presented to court is that the Caprivi Liberation Army also known as the

Caprivi Liberation Movement was established by the UDP, as an instrument to

liberate the Caprivi Region by violent means with the aim to establish an

independent State. In order to achieve this ultimate goal, it was politically expedient

to sacrifice human lives.

[1004] Accused no. 11 in his bail application testified that he went to Botswana in

order to achieve this ultimate aim, namely the attainment of the independence of the

Caprivi region. The accused as a member of the Caprivi Liberation Movement was

prepared to make his own contribution through the ‘barrel of the gun’. His testimony

was that he left Dukwe refugee camp and crossed illegally into Zambia as a member

of the Caprivi Liberation Movement. In Zambia, he and others received training from

co-accused John Samboma. The only training they could have received was military

training in preparation for attacks in the Caprivi Region. Accused no. 11 was arrested

a few days after the attack on Katima Mulilo. During the bail proceedings he testified

that he had abandoned the belief he previously held. This in my view was self

serving, because he had to convince the magistrate to release him on bail. Had the

accused informed the magistrate that he still held those views, bail would on this

basis not have been considered.

[1005] What the accused informed this Court during his address is in my view much

more than just a confirmation of his challenge to the jurisdiction of this Court. It is

consistent with his political views he held when he fled to Dukwe and subsequently

to Zambia in his capacity as member of the Caprivi Liberation Movement and

consistent with the aims of the CLA, namely an independent Caprivi.

358

[1006] I agree with Mr Kavendjii that the evidence presented by the State through the

three witnesses referred to leaves much to be desired and that those testimonies

must be approached with caution. However their testimonies must be considered in

view of what is contained in Exhibit F(4). There is uncontroverted evidence that

accused no 54 was the leader of a group of men referred to as the group of 92 and

member of the CLA. Accused no 11 refers to accused no 54 as his leader in his bail

application. In what respect was he led by accused no 54?

[1007] The accused elected not to testify. I am of the view that the evidence against

the accused required an answer from him. I am further satisfied that the State had

succeeded to prove the commission of the offences set out hereunder beyond

reasonable doubt.

Clients of Mrs Aggenbach

Mandate and jurisdiction of the High Court over the Caprivi Zipfel

[1008] Ms Aggenbach called two defence witnesses namely Dr John Makala Lilemba

and Mr Phil Ya Nangolo. The state witnesses Dr Sakeus Akweenda and Bernard

Sibalatani were recalled and cross-examined. Ms Aggenbach in her heads of

argument submitted that the State has failed to prove beyond reasonable doubt that

Namibia has majestas over the territory known and described as the Eastern Caprivi

Zipfel where all the alleged offences, as contained in the indictment, preferred

against the accused have been committed, and subsequently failed to prove beyond

reasonable doubt that any of the accused committed the crime of high treason or

sedition.

[1009] Ms Aggenbach filed voluminous heads of argument in order to drive this point

with reference to the testimonies of the few witnesses referred to. In a nutshell, it

was submitted that at the time the territory formerly known as German South West

Africa in 1990 there were in existence two mandates. The one in respect of the

territory known as the Eastern Caprivi Zipfel and the other territory, German South

West Africa. The argument, as I understand it, is that only the territory formerly

known as German South West Africa attained independence on 28 March 1990 to

359

the exclusion of the territory the Eastern Caprivi Zipfel. The logical consequence of

this argument is that the Caprivi Region is a territory under British rule since

Germany, in an agreement between Britain and Germany in 1890, only obtained a

sphere of influence and not a territorial claim. This agreement is referred to as the

Heligoland/Zanzibar Treaty. Ms Aggenbach submitted that on the evidence of Mr

Phil Ya Nangolo the boundaries set in terms of the Berlin Conference in 1890 were

not altered by the Heligoland/Zanzibar Treaty.

[1010] Sakeus Akweenda testified that he holds the degrees LLB, LLM and a PhD in

Law from the University of London and that his doctoral thesis covers all boundaries

and territorial claims from the time the territory became known as German South

West Africa until present day Namibia. His doctoral thesis is titled ‘International law

and the Protection of Namibia’s Territorial integrity: Boundaries and Territorial

Claims’. His evidence in respect of the issue of two mandates theory was that there

is no room for such a theory because no power challenged the sovereignty of

Germany over the whole area. During cross-examination by Mrs Aggenbach in

respect of the boundaries of Namibia Dr. Akweenda testified as follows:

‘The boundaries of Namibia can only be found in three treaties, three instruments.

The whole north, with the exception of notification or clarification of where there were

disputes or where there were uncertainties so the whole north from the mouth of the Kunene

to the Zambezi River by the Katima rapids is the Germany/Portuguese declaration of 30

December 1886. Then the whole South then which is from the mouth of the Orange River is

the agreement of 1 July 1890 that is the Anglo Germany Agreement. That agreement

defined boundaries of wherever a Germany colony touched a British territory, everything is

in that document. It is so compact, so the whole from the south the orange River that is

where it touches the 20 east degree, 22nd, the 21st second paragraph, 21st longitude all the

way then to Chobe until where the center of the main channel of Chobe touches the

Zambezi is that second instrument. By the time Germany lost its colony, German South

West Africa the boundary constituted by the Zambezi River that is from, just Zambezi River

from the agreement to join the 1886 and then 1890 just a river that was not defined. By

1890 it is in the thesis and the book, Germany was saying the boundary of the Zambezi that

is between Germany South West Africa and Northern Rhodesia should be the main channel.

What happened is that in 1932 starting all the way from 31, 32 the Union of South Africa and

the administration in Northern Rhodesia have been negotiating which negotiations led

them to the exchange of notes whereby they agree that the Taalweg should be the boundary

in that river. Then they demarcated it. They went all the way to prepare a map depicting

360

which Islands where that line runs and they define which island fall to South West Africa

and which island fell to Northern Rhodesia, so that is those two exchange of notes are what I

refer to as the third instrument to the extreme north, east.’

[1011] Mr Phil Ya Nangolo disagreed, and testified that the agreement was not a

boundary treaty and stated that the mandate instrument over the area which formerly

constituted German South West Africa was instituted, the Western Caprivi was

actually under control of the British from Bechuanaland. It was submitted by counsel

that in terms of the Heligoland/Zanzibar treaty that Namibia is a successor State and

that Germany could give no more, as what it had at that stage namely a sphere of

influence and that the State failed to prove that the Caprivi region forms part of the

territory of Namibia and that Namibia has majested over the Caprivi.

[1012] The State in their heads of argument refers to an unreported judgment of the

South West African Supreme Court in 1985, prior to Namibia’s independence which,

inter alia, dealt with the legal position as applicable in the Eastern Caprivi Zipfel at

that stage in the matter of Moraliswani v Mamili220 where Strydom J at p 2 stated:

‘The Caprivi was a part of German South West Africa, in respect of which, after

World War I, a mandate was conferred upon the Union of South Africa and was to

be governed as an integral part of the Union of South West Africa.’

[1013] The following appears in Namlex:

‘Prior to the colonial presence in Namibia, the laws in force were the customary laws

of the various communities. Germany first annexed portions of Namibia as a colony

in 1884. The boundaries of the territory, which became known as German South

West Africa, were set forth in agreements concluded in 1886 with Portugal and in

1890 with Great Britain. The territory was administered by German colonial officials,

who initially issued only a small number of regulations. A Governor’s Council

representing the colonial settlers was established in 1908.’

[1014] Dr Akweenda, an expert in International Law, gave evidence as to the

agreement in 1884, 1886 and 1890 and how the territory of German South West

Africa was created. In his condensed thesis published as a law handbook, he

explained to Court how the agreement between Britain and Germany of 1 July 1890 220 Case I 389/85 delivered on 12 June 1985.

361

created the southern boundary and eastern boundary of Namibia. He also

specifically indicated how the Caprivi became part of German South West Africa and

when the boundaries agreed to between Portugal and Germany in 1886 become the

boundary of present day in Namibia.221 Dr Akweenda referred to Article III of the

1890 Agreement as set out in Exhibit ECO and read with Exhibit ECU (which is the

official United Nations map of Namibia, compiled on the basis of general Assembly

Resolution A/RES/31/150 of 20 December 1976-Dissemination of information of

Namibia). Article III of 1890 agreement reads as follows:

‘In Southwest 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 that river to the point of its intersection by the 20 th

degree of east longitude.

2. To the east by a line commencing at the above-named point, and following the 20th

degree of east longitude to the point of its intersection by the 22nd parallel of south

latitude; it runs eastward 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 18th parallel of south latitude; it turns eastwards along that parallel

till it reaches the river Chobe; and descends the center of the main channel of that

river to its junction with the Zambesi , where it terminates.’

[1015] The following appears in Moraliswani:

‘Because of the geographical location the administration of the Caprivi was

transferred to the Resident Commissioner and other officers of the Bechualand

Protectorate by Proclamation No. 23 of 1922, also with retrospective force from 1st

January, 1921. Section 2 of the Proclamation applied all the laws in force in

Bechualand Protectorate to the Caprivi as well as laws thereafter made for the

protectorates unless specifically excluded from operation in the Caprivi.

The Caprivi was so administered until 1929 when by Proclamation No. 196 of 1929

the administration was transferred to the Administrator for south West Africa as from

the 1st September 1929. The Administrator was given all he powers set out in section

2(a) and (b) of Act No. 49 of 1919. In his turn the Administrator by Proclamation

26 of 1929, applied all laws, then in existence in the Territory of South West Africa, to

221 Doctorate thesis.

362

the Caprivi and further enacted that all laws made after 1 September 1929, unless

specifically so stated, shall apply to the Caprivi (section 2 of Proclamation No. 26 of

1929).

The situation again changed when, by Proclamation No. 147 of 1939, the

administration of the Eastern Caprivi was transferred to the Department of Native

Affairs and thus came under the authority of the Minister of Native Affairs of the

Union Government. (Section 2 of the said Proclamation). The power to legislate for

the Caprivi was however not transferred to the Minister and was retained by the

Governor-General. In terms of section 3 of the said proclamation all laws in force

immediately before the coming into effect of the proclamation were to remain in force

until repealed or amended. This proclamation became effective on the 1st August

1939.’

[1016] In the proclamation, the Easter Caprivi Zipfel is described as ‘that portion of

the Caprivi Zipfel which lies East of a line running due South from beacon No. 22

situated on the border between the said Mandated Territory and Angola’. The

remainder of the Caprivi Zipfel (that is that part located to the west of beacon No. 22)

remained with the rest of South West Africa. Section 4 of the Proclamation however

retained the jurisdiction of the High Court of South West Africa over the Eastern

Caprivi Zipfel. The following appears in Moraliswani at p 3-4:

‘As far as the South West African Administration is concerned the Caprivi more or

less vanished from the scene during this period and only emerged again after certain

constitutional development took place and is now again very much part of the South

West African political scene. The development to which I have referred was brought

about by the Development of Self-Government for Natives in South West Africa Act,

Act No. 54 of 1968. Acting in terms of the powers conferred therein on the State

President of the Republic of South Africa, the latter, by proclamation No. R.261 of

1972, recognized the tribal authorities of the two tibes of the Caprivi namely the

Mafwe and Besubia tribes. This development was taken a step further when the

State President by Proclamation R.6 of 1972 constituted a Legislative Council for the

Caprivi as from the 18th January 1972 with limited legislative powers. Still acting

under the powers conferred upon him by Act No. 54 of 1968, the State President, by

Proclamation No. R.42 of 1976, declared the Eastern Caprivi as a self-governing

area within the Territory of South West Africa.’

363

[1017] It is apparent from the evidence of Dr Akweenda and the Moraliswani matter

that the territory known as the Caprivi Zipfel has since 1890 been part of the territory

of Namibia even though it had from time to time been administered separately from

the rest of Namibia. It is on this basis that the drafters of the Constitution of Namibia

included the following in the preamble:

‘committed to these principles, have resolved to constitute the republic of Namibia as

a soverign secular, democratic and unitary State securing to all out citizens justice,

liberty, equality and fraternity.”

[1018] The submission that Eastern Caprivi Zipfel is not specifically mentioned in the

Constitution becomes in view of the aforesaid, superficous. Mr Phil Ya Nangolo, an

International Human rights Practitioner, admitted that he is not an expert on

International Law and not an expert on the interpretation of international instruments.

This Court has therefore no reason not to accept the evidence of Dr Akweenda that

there was never two mandates in respect of two different authorities and that the

territory known as the Eastern Caprivi Zipfel was part of the territory of Namibia prior

to its attainment of independence in March 1990. It follows that all the accused

persons are subjects of the Namibian State to whom they owed an allegiance since

the foundation of the Namibian State.

Thaddeus Siyoka Ndala (accused no. 70)

[1019] Christopher Lifasi Siboli testified and identified the accused person in court as

a person who was actively involved in the secession of the Caprivi from Namibia in

the following ways: he attended a meeting of a committee in 1998 at the DTA office,

Katima Mulilo where Mishake Muyongo and Geoffrey Mwilima had discussions on

the secession of Caprivi from Namibia by violent means and that the accused

supported this idea; the accused was present when the CLA was formed in 1989 and

that the accused has recruited persons for the CLA; that at a meeting in the year

1992 chaired by Mishake Muyongo he accepted to go to Angola to acquire fire arms

for the purpose of seceding the Caprivi Region; that he donated money to acquire

fire arms in Angola; that during the year 1997 he attended various meetings at the

364

DTA office, at the old house of Mishake Muyongo, at Liselo village and at

Masokotwani where the secession of the Caprivi was discussed.

[1020] Alfred Kapulo Kapulo’s evidence has been dealt with earlier. This witness

testified that whilst at Sachona, Thaddeus Ndala and Kennith Sitali brought food to

the camp on one occasion. He testified that it was the first time for him to see

Thaddeus Ndala. Subsequently, they left Sachona for Linyanti, apparently because,

according to John Samboma, their presence became known. The group consisted of

about 100 individuals and they were transported in two vehicles. He travelled in the

vehicle driven by Thaddeus Ndala. The accused identified Thaddeus Ndala in court

as accused no 70.222

[1021] Oliver Muyandi Mbulunga’s evidence was dealt with earlier. This witness

testified about an incident where Thaddeus Ndala had send Osbert Likanyi to inform

him about a DTA meeting the next day. This witness also testified about an occasion

where John Samboma led a group into Zambia and torward a UNITA camp. On their

return from the UNITA camp to Zambia they encounted Thaddeus Ndala and Steven

Mamili who had brought food for the group. This witness identified Thaddeus Ndala

as accused no 70 in court. The evidence of this witness, in particular his

identification of accused no 70, was not challenged during cross-examination by

counsel who appeared on behalf of the accused.

[1022] William Miti Ndana’s testimony was dealt with earlier. This witness testified

that during October 1998 he was persuaded by one Thaddeus Muzamai to become

part of what he referred to as the group of 92. At some stage he found himself at

Sachona with a group of about 20 persons. The witness testified that Thaddeus

Ndala brought them food whilst at Sachona and that Thaddeus Ndala drove a

vehicle belonging to one of the co-accused persons. According to this witness,

Thaddeus Ndala is a person whom he had known from Katima Mulilo. This witness

identified the person he referred to as Thaddeus Ndala as accused no 70 in court.

The evidence of this witness was never challenged during cross-examination by

counsel who appeared on his behalf at that stage. The identification by the witness

was not placed in dispute. Exhibit EGF(8) referred to earlier on p 8 refers to the

222 P 2965.

365

history of the first CLA Commando’s for independance struggle. In an inscription on

p 14 the following appears:

‘Wednesday the 28th October 1998 at 18h15 Mr Mishake Muyongo the president of

UDP – led the group of four men out of Katima Mulilo. Their names are as follows:

(a) Ndala Thaddeus Siyoka

(b) Sitali Kenneth

(c) Mushakwa Charles Mafenyeho

(d) Muhinda Mubuyaeta

We were five in number. Branson Kwala borrowed the Hilux single vehicle

registration no was N 807 KM and drove us to Mphundu via Machifa Road.’

[1023] It was submitted by Mr July that Exhibit EGF (2) was found in possession of

accused no 70 at the time of his arrest. This exhibit contains, under the heading

‘Required Equipment’, a list of weapons needed as well as other materials. On p 3 of

this exhibit appears the following:

‘29/10/98 Mr Muyongo and 4 men crossed at a different place into Botswana and

reported ourselves at Kasane police station.

But then the 92 men (CLA) crossed into Botswana on 27/10/98 Wed.

Reason for forming the CLA was that if: - peaceful negotiations concerning Caprivi

fails we should have something to reply on. To from up this army we used a

“collective decision”.’

[1024] The accused admitted in a bail application brought on 31/07/2000 that he was

a former member of the SWATF and that he was a member of the UDP at that stage.

Exhibit ETC reflects that Thaddeus Ndala was one of the members of the UDP who

attended a meeting on 1 January 1999 in Botswana. I have referred to Exhibit ETC

and that what is contained therein (ie the minutes of the UDP meeting) amounts to

an executive of statement.

[1025] It was submitted by Ms Aggenbach that the documents confiscated from the

accused at Grootfontein Prison was unlawfully confiscated for lack of either a search

warrant, court order or permission from the accused. Counsel also submitted that it

is common cause that the accused was part of the ‘Mamili-Group’, that the accused

366

left for Botswana in 1998 before he left for Zambia where he and others in the Mamili

group were arrested in June 1998 and remained in prison in Zambia until they were

abducted. This court dealt with this allegation of abduction in a judgment and the

Supreme Court also delivered a judgment in respect of this issue.

[1026] It was also submitted by Ms Aggenbach that the evidence of the State witness

should be rejected on the basis of unreliability. I must state that in respect of the

evidence of Siboli to the effect that the CLA was founded in 1989, this is highly

unlikely because in 1989 there was as yet no Government in an independent

Namibia hence also no reason for the existence of such an organisation at that

stage. This evidence is also contrary to other evidence that the CLA was formed only

at a much later stage. The evidence of Siboli about the formation of the CLA and

who were apparently present on such an occasion is rejected. The testimonies of

Mbulunga and Ndala stand unconverted. The evidence of Kupulo as far as it

concerns the accused was also not challenged during cross-examination.

[1027] The accused elected not to testify in the face of the evidence which requires

an answer from him. I am accordingly satisfied that the evidence presented by the

State at the conclusion of the trial constitutes proof beyond reasonable doubt - that

the accused committed overt acts with the required hostile intent and that the

accused committed the offences as set out hereunder.

Martin Siano Tubaundule (accused no. 71)

[1028] Rassens Luslizi Kumana testified that his cousin Francis Mubita approached

him on 2 November 1998 and suggested that he should go to Botswana. The next

day he was at Zambezi filling station in Katima Mulilo where Francis Mubita was

waiting for him. The witness was with a friend. Subsequently they moved in a convoy

of three vehicles from the filling station to Liselo. One of these vehicles was a dark

blue Hilux bakkie with registration number N 408 KM and was driven by Martin

Tubaundule. Thereafter they left for Lizauli where they spent the night and the next

day crossed into Botswana. Martin Tabaundule was identified in court as accused no

71. This evidence was not disputed by the accused.

[1029] Hamlet Kachibolewa Muzwaki testified that during October/November 1998

he attended a meeting at school premises in the village of Sibinda addressed by

367

Mishake Muyongo after his resignation from Parliament. The topic of discussion was

the secession of the Caprivi Region from Namibia. One of the attendants was Martin

Tubaundule. Muyongo, according to this witness, said that he resigned from

Parliament and that he was there in order to ‘make his own army for Caprivi’. This

evidence was not disputed by the accused. Simeon Nghinomenwa Kaipiti, a member

of the Prison services, testified that on 10 August 1999, Stephen Mamili, Charles

Mushakwa, Thaddeus Ndala, Moses Mushwena, Martin Tubaundule and Oscar

Nyambe were admitted at Grootfontein Prison together with their properties including

diaries and letters which were entered into the admission register. These properties

were subsequently handed over to Inspector Haingumbi.

[1030] Eimo Dumeni Popyeinawa, one of the investigating officers was presented

with a document which he identified as a document belonging to Martin Tubaundule

which inter alia contains the following inscription:

‘16/12/1998, this date I left the Caprivi to join the armed struggle for the Caprivi

Liberation Army. To fight for independence is not mere verbal talk. Then to take the

armed struggle . . . to take it all means, not leaving unturned stones. The key for the

struggle is armed struggle. We have to take some risks.’

[1031] This is an extract from EGJ(1) when compared with the handwriting of the

accused person by a handwriting expert it was found to be highly probable the

handwriting of the accused. This accused person was also present at the meeting of

1 January 1999 in Botswana referred to in Exhibit ECT, p 275. It was submitted by

Ms Aggenbach that Exhibit EGJ 1 – EGJ 3 a diary found by Simeon Kapiti was

unlawfully confiscated by the prisons authorities. In respect of the testimony of the

handwriting expert it was submitted that the finding was inconclusive and only highly

probable that of the accused person. It was submitted by Ms Aggenbach that the

accused was part of the Mamili group, was in prison in Zambia since June 1999 and

that there is no evidence that the accused made any contact with any of those who

are alleged to have launched the attack on 2nd August 1999. In respect of the

identification of accused no 71 by the witness Rassens Kumana, it was submitted

that the witness testified that the accused was his school principal. The submission

that the witness was not asked to identify whom he could recognise as having

transported people, but asked to identify those persons mentioned in his evidence

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before court is inconsequential, since the evidence was that the accused was one of

the drivers of vehicles who transported persons to the border of Botswana.

[1032] In respect of the evidence of Muzwaki, it was submitted by Ms Aggenbach

that the witness in his first statement in 2000, when questioned by the police, did not

mention the issue regarding seceding the Caprivi, that he gave three successive

statements and in all three had forgotten about the meeting which he referred to

which was held in 1998. It was submitted that after 8 years the witness testified

about that meeting in his viva voca evidence. I agree that one could legitimately

question the ability of the witness to remember such an incident after such a long

time, but it is not uncommon for witnesses to testify about events not mentioned in

their witness statements.

[1033] I only considered the evidence of State witnesses who were able to identify

the accused person. There were a number of other witnesses called who gave

incriminating evidence against the accused but who were unable to identify him.

Nevertheless in spite of the criticism raised by Ms Aggenbach, I am of the view that

the cumulative effect of the evidence presented by the State was of such a nature

that it required an answer from the accused.

[1034] The accused elected not to testify. I am satisfied that the evidence presented

by the State, in the absence of a reply by the accused person, proves the

commission of the offences mentioned hereunder beyond reasonable doubt.

Andreas Puo Mulupa (accused no. 26)

[1035] Isah Siyobo Mulupa testified that the accused is his brother who went to

Botswana during the year 1998. He, himself, did not go to Botswana and did not

know why his brother went to Botswana. On his brother’s return from Botswana he

went to him and the following appears from the record223:

‘Okay. When did you ask him? . . . I went there when I heard that he arrived from,

when he came back. That’s why I went there and informed him that he must not be

involved in this thing which I heard.

223 P 22798.

369

Did he say anything in reply? . . . He just informed me that: “We were shooting.”

Did he inform you where he was shooting? . . . At Katima Mulilo.

Did he tell you when he shot at Katima Mulilo? . . . He did not tell me the time.

Did he give you a date that he shot at Katima Mulilo? . . . He said that: “The date is

unknown.”

What is the date, what is the date that he gave you? . . . I informed him that: “No, I

don’t know about the date, I did not go to school.’

[1036] This witness did not identify his brother Andreas Malupa in court. It was

submitted by Ms Aggenbach in her heads of argument that it is common cause that

the accused was one of those who had been abducted from Zambia. It was

submitted by Ms Aggenbach that the State in its heads of argument224 refers this

Court to the alleged testimony of witness Oscar Mwisepi with reference to specific

pages in the record,225 however the testimony which appears on those pages

referred to does not relate at all to Andreas Mulupa, accused no 26. It was submitted

and correctly so, that the events referred by Mwisepi on those pages pertains either

to what transpired at Bank Windhoek on the morning of 2 August 1999, that Mishake

Muyongo is the witness’uncle, the manner in which the witness became aware of

secession, and the manner in which the witness recruited people to go to Botswana.

Ms Aggenbach submitted it is a serious typographical error and that the evidence

appearing on those pages of the record should be rejected as that evidence does not

implicate the accused person.

[1037] The State in its heads of argument refers to the following witnesses in support

of the submission that the accused should be convicted of high treason and other

charges: Ruben Sikwela and Akson Masule and Exhibit EGK1, the deployment list.

The testimony of Ruben Sikwela was ruled inadmissible by this Court during the s

174 application.

224 P 186 and 187.225 P 600 lines 23, p 603 lines 3 & 20, p 650 line 23, p 626 lines 8 – 10, p 626 line 24, p 627 line 1.

370

[1038] Akson Masule testified that he is a witch doctor and that during the year 1999

John Samboma accompanied by Andreas Mulupo and one Mutuso approached him

at Imushu, Zambia with a request to provide them with medicine since they wanted

to secede the Caprivi Region. This witness testified that he consequently treated a

number of persons on the island Navumbwe. This witness failed to identify Andreas

Mulupo as any one of the accused person before court.

[1039] I am not satisfied that the State has presented evidence which proves the

commission of any of the charges preferred against the accused person beyond

reasonable doubt, in spite of the failure of the accused to testify.

Joseph Kamwi Kamwi (accused no. 3)

[1040] Christopher Siboli testified that he saw Joseph Kamwi on 2 August 1999 at

approximately 10h00 at the Katima Mulilo shopping centre with a fire arm in his

possession. Hieronymus Bartholomeus Goraseb, the Regional Commander of the

Caprivi region and member of the Namibian Police, testified that between 06h00 and

07h00 on 2 August 1999, Joseph Kamwi and Brian Mushandikwe were arrested. At

the time of their arrest they were unarmed. They were walking in a footpath a few

metres into the bush. They were searched and a bottle of Vaseline with some

ointment and a white bandage was found. They had no wounds. It was suspicious.

He then instructed that they be arrested.

[1041] It was submitted by Ms Aggenbach that the testimony of Siboli is contradicted

by the testimony of Chief Inspector Goraseb. In this regard it was pointed out that if

the accused were arrested between 06h00 and 07h00 unarmed, Siboli could not

have seen him at 10h00 with a fire arm. I agree. Counsel further submitted that in

respect of the pointing out in Court, the witness Siboli referred to the person he had

seen with the fire arm and who he claimed to be his cousin only as Joseph because

he did not know the surname but referred to that person as Joseph Tutalife. I must

conclude that in view of the testimony by Chief Inspector Goraseb, Siboli could not

have seen accused no 3 at 10h00 with a fire arm. The evidence of Siboli to that

effect is accordingly excluded.

371

[1042] Witnesses also called by the State were Ivan Jona Mate Twabulayo and

Bornbright Mutendelwa Kafwa. I have earlier pointed out that the testimonies of

these witnesses were to be excluded due to the fact that they were severely tortured.

Ms Aggenbach pointed out that the testimony of Siboli to the effect that the accused

had allegedly attended a meeting were Kapano ya tou members during 1991 where

the topic of discussion was the secession of Caprivi falls outside the period

contained in the charge sheet. I expressed my reservations earlier that an issue like

the secession of the Caprivi could have arisen at such an early stage.

[1043] Ms Aggenbach further in respect of Exhibit EGK1, and EGX submitted that

there is no evidence that the accused was at Makanga and the fact that a name

similar to his name appears on the deployment list cannot take the matter any

further. In respect of the evidence of officer Popeinawa that the accused was seen in

the company of rebels days before the attack and gave water to Popeinawa was

referred to Popeinawa by a different name. I must state that Popeinawa was the last

State witness called in this trial and testified about this work in the Caprivi as

undercover police officer and who acted in different capacities during that period in

order to obtain information regarding the issue of secession during a long period

prior to the attack on 2nd August 1999. The statements deposed to by Popeinawa do

not contain a number of events testified to by the witness in his evidence in chief.

The witness acknowledged the deficiencies of his statements in this regard. The

evidence that the accused was seen in the company of rebels is tenuous.

[1044] I am of the view that the evidence presented by the State in the absence of

any evidence by the accused does not prove the commission of the preferred

charges against him beyond reasonable doubt.

Herbert Mboozi Mutahane (accused no. 5)

[1045] Walters Mwezi Sikochi testified that one Herbert Mutahane was at Makanga

bushes on the night of 1 August 1999 and that this individual participated in the

attack on Katima Mulilo the next day. The accused was arrested in the bushes near

Caprivi Toyota in Katima Mulilo on 2 August 1999. Hieronymus Bartholomeus

Goraseb, a member of the Namibian Police with the rank of Chief Inspector, testified

about an incident on 2 August 1999 where he was in the company of constable

372

Kashere. The accused and Derrick Ndala had been arrested by other members of

the Police force.

[1046] It was submitted by Ms Aggenbach that Walters Sikochi had deposed to a

statement to the police in which he stated that he last saw his bother Herbert

Mutahane on 27th July 1998 when he accompanied him to Katima Mulilo. The two

parted at a known hitch hiking spot where his brother got a lift. Since then he never

saw him again. He had no knowledge why his brother was arrested, had only heard

rumours of seceding the Caprivi from the rest of Namibia and concluded that his

brother could have been arrested for secessionist activities. His witness statement is

a contradiction of his testimony- in- chief. This witness was unwilling when given the

opportunity to identify person mentioned in his evidence-in-chief to do so and

expressed the view that what he had given the court was quite enough, and could

not be expected to do more. He wanted to know if the court has the right to force a

witness to do what he was not feeling to do.

[1047] According to the witness he had expressed his unwillingness to Mr July when

he consulted with the witness for the first time. It was submitted by Ms Aggenbach

that it was only after consultations with Mr July in the prosecutor’s office (after an

adjournment) that he reluctantly and half-heartedly pointed at some accused persons

who included the accused and Chris Ntaba. A number of witnesses ie Ruben

Sikwela, Ivan John Mate Twabulamayo, Bornbright Kufwa, Given Lufela Ndungatti,

were called by the prosecution. The testimonies of these witnesses as stated

previously were declared inadmissible.

[1048] The only testimony which placed the accused at Makanga is that of Sikochi.

He was a witness who gave to contradictory statements under oath and was

obviously reluctant to cooperate with the prosecutor. Sikochi is thus a single witness

and this court can only rely on this testimony if it was clear and satisfactory in all

material respects, which it was not. The testimony of Chief Inspector Goraseb

related to an incident, as testified by him, after the arrest of the accused. The

accused led them to a place in the bush where weaponry had been hidden under

leaves and branches, namely a RPG7 rocket launcher, a RPG7 shell, an AK47 rifle

and a shotgun. Chief Inspector Goraseb described the accused as a boy of

approximately 16 years old who spoke to Cst Kashera in a language unfamiliar to

373

him. Cst Kashera then asked him to follow them and the boy led them to a small

riverbed. It appears from the evidence of Chief Inspector Goraseb that the accused

had not been warned of any of his constitutional rights prior to him making the

pointing out. Cst Kashera was not called to testify.

[1049] When Chief Inspector Goraseb testified the accused was an unrepresented

accused. It is nevertheless my view that in the absence of any objection to the

admissibility of that pointing out that the accused was not informed of his

constitutional rights, neither was he informed about the Judges rules. The pointing

out is inadmissible and so is the subsequent discovery of the weaponry mentioned

by the witness.

[1050] I am not satisfied that the State has succeeded in proving the commission of

any of the preferred charges against the accused beyond reasonable doubt in spite

of the failure by the accused to testify.

Chris Puisano Ntaba (accused no. 7)

[1051] Walter Mwezi Sikochi testified that Chris Ntaba was at Makanga on 1st August

1998 where the final preparations were made for the attack on 2nd August 1999. The

witness identified Chris Ntaba as accused no 7 in court. It was submitted by Ms

Aggenbach that the testimony of Walter Sikochi was that one of his friends Chris

Ntaba invited him to advance his education in Botswana and testified that Chris

Ntaba was at Makanga. It was submitted that Sikochi testified with reference to the

Chris Ntaba at Makanga that this person did not go with him to Mpacha.

[1052] The evidence of the witness Johnny Shapaka was dealt with previously. Ms

Aggenbach in her heads of argument referers this court to the record226 where it

apparently appears that the person depicted on photographs 31, 32 and 33 were

part of the group of eight persons who were captured at Mpacha village and not at

Mpacha military base. The record does not reflect such testimony on the page

referred to by counsel.

226 P 13658.

374

[1053] Shapaka testified that the four rebels who were first captured were captured

around 04h00 and the group of eight rebels were captured around 07h00 – 08h00.227

Lemmy Haufiku’s evidence was already dealt with previously. This witness testified

that he handed over the captured rebels to the police at 10h30. It was submitted by

counsel that the evidence by Ben Shikesho that he found the three persons

appearing on photos 31, 32 and 33 upon his return from Katima Mulilo after 14h00

when he went to ask their names cannot be correct since if the accused was still

there he certainly was not amongst the four handed over to the police by Haufiku

earlier in the morning.

[1054] Daniel Mouton testified that he visited Mpacha military base on 2nd August

1999 just after 14h00 and testified about quite a number of photographs taken by

him which forms part of the evidence before Court. At that stage he was a detective-

sergeant in the Namibian Police force assigned to the Serious Crime Unit in

Windhoek and was employed as official photographer and draughtsman. In respect

of Exhibit Q and photographs 31, 32, and 33, he testified, were photos taken by

himself on 2nd August 1999 after 14h00 and at Mpacha Military Base. The witness

testified that the second person who appears on photo 33 is Chief Inspector Blaauw.

The witness testified that photos 31, 32 and 33 were taken more or less within the

same period. The members of the police force to whom the suspected rebels were

handed over were not called to testify in respect of the handing over of these

individuals.

[1055] The accused elected not to testify. The evidence against the accused is that

he was captured on the morning of 2nd August 1999 inside Mpacha military base and

was asked to identify himself which he did. Photographs were taken after 14h00 of

the accused at Mpacha military base. Mr Kachaka during cross-examination put it to

the witness Mouton that he could not deny that the accused was arrested elsewhere

and then brought to the military base. The witness conceded that he could not deny

it. There is however no evidence that the accused was captured elsewhere.

[1056] Nevertheless this accused person elected not to testify. I am satisfied that the

prima facie evidence presented by the State proved the presence of the accused

person on the premises of Mpacha military base on the morning of 2nd August 1999.

227 See cross examination by Mr Neves.

375

This constitutes an overt act. In my view the only reasonably inference to be drawn

in these circumstances is that the accused had the required hostile intent. I am

satisfied that the evidence presented by the State, in the absence of any evidence by

the accused person, proves beyond reasonable doubt the commission of the

offences referred to hereunder.

Roster Mushe Lukato (accused no. 18)

[1057] Euster Lwamaemo identified Roster Lukato as his brother and testified that

during 1998 – 1999 his brother stayed at the village Chisozu at his mother’s court

yard. During December 1998 the accused went missing from the village only to

return during June 1999 by way of repatriation.

[1058] David Ashipala testified that he is a member of the Namibian Police Force. On

15 April 2000 at around 04h00 they departed for a specific village with the aim of

tracing people who allegedly participated in the attack on 2 August 1999. He was in

the company of other members of the Police Force as well as members of the

Special Field Force. Near a village in Makanga area one group of officers remained

at the roadside and another group went into the village. He was in the group who

stayed behind. Those who went into the village later returned with a suspect and an

AK 47. This AK 47 was covered with sand. The suspect later became known to him

as Roster Lukato. Three other suspects namely, Francis Pangelo, Frederick Lutuhezi

and Kisko Twaimango Sakusheka were also arrested. He testified that police officer

Kanyetu led this group into the village.

[1059] Bonfacious Kanyetu testified that he is a member of the Namibian Police

Force and held the rank of warrant officer during the year 2000. The corroborated

the evidence of David Ashipala. He testified about another suspect, Davis Mazyu

who was also arrested. According to him, Roster Lukato was arrested in the village

and that he seized an AK 47 which the accused had received from Mazyu. He

testified that this AK 47 was hidden outside the courtyard in nearby bushes. He

further testified that inside the room of Roster Lukato, he seized ammunition for a R1

riffle. This accused was one of those individuals who had absented themselves from

the proceedings without permission by this Court and he was therefore not present

when the two police officers gave their testimonies. During my ruling in the s 174

376

application, I stated that the evidence established at least that the accused had

contravened the provisions of the Arms and Ammunition Act

[1060] Mr July submitted that the accused went to Botswana as a refugee in Dukwe

which was the breeding ground of the conspiracy, was repatriated and his name

appears on the deployment list and that he made an “undisputed confession”.

[1061] I have expressed my view earlier in respect of the contention that the mere

fact that an accused person was a refugee in Dukwe does not necessarily constitute

an overt act. The “undisputed confession” referred to by Mr July had been ruled

inadmissible. The evidence of Kanyetu in respect of the seizure of the AK 47 rifle

and the ammunition for an R1 rifle is very scant. It is not clear what procedure was

followed prior to the seizure of the AK 47 and whether any rights were explained. I

still hold the view that the evidence presented by the State does not prove the

commission of the first count. In view of the uncertainty in respect of the

circumstances of the seizure of the AK 47 and the ammunition, I am of the view that

the testimony of Kanyetu in this regard cannot safely be accepted as admissible

evidence.

[1062] I am not satisfied that the evidence presented by the State has proved the

commission of the preferred charges against the accused in spite of failure by the

accused to testify, beyond reasonable doubt.

Davis Chioma Mazyu (accused no. 16)

[1063] Walters Sikochi testified that Mazyu Davis was with him on 1st August 1998

when the final preparations were made for the attack on Katima Mulilo the next day.

Sikochi identified Mazyu Davis in court as accused no. 16. Ruben Sikwela was

called and gave incriminating evidence against the accused person. This evidence

was ruled inadmissible. Bornbright Kufwa also gave incriminating evidence against

the accused. His testimony was also ruled inadmissible. I have expressed the view

that Sikochi is a single witness and a co-accused whose evidence may only be

accepted as a basis for a conviction if such evidence is clear and satisfactory in

every respect. The evidence of this witness as indicated (supra) cannot be

categorized as such.

377

[1064] I am not satisfied that the State has proved the commission of the preferred

offences beyond reasonable doubt in spite of the failure by the accused to testify.

Postrick Mowa Mwinga (accused no. 23)

[1065] Oscar Mwisepi testified that Postrick Mwinga was in Dukwe. Mwisepi

identified Postrick Mwinga as accused no 23. Mwisepi testified that after the attack

on 2 August 1999 the accused identified himself on NBC Radio station (Silozi

section) calling on his fellow rebels to come back home and that ‘they should not go

ahead with rebelling against the State’. Rennety Koyi Mukushwani, the wife of the

accused, was informed of the provisions of s. 198 of Act 51 of 1977 and was willing

to testify. She testified that during September 1999 she heard the accused over the

radio. She was in a state of shock and did not hear much. She said that she heard

him saying:

‘. . . you should come and report yourself, you my friends to the police officers or

hand yourself to the police officers.’

The witness testified that her husband was a police officer.

[1066] Shailock Sinfwa Sitali identified the accused as one of the attendants at a

meeting during the year 1998 at the Regional office of the DTA where Mishake

Muyongo informed the gathering that the UDP separated from the DTA and that the

Caprivi will be seceded from Namibia. Ms Aggenbach in her heads of argument

submitted that Muyongo did not at this meeting give instructions that the members

should organize people. All that Muyongo said was that the UDP has pulled away

from the DTA, was going to stand as an independent party and that they should go

around in the villages informing the villagers of that. It was submitted that the

testimony of the witness was that it was a public meeting and that there was police

presence. Oliver Simasiku Chunga also testified that Postrick Mwinga identified

himself over the radio and announced that ‘the people in the bush must come and

hand themselves over’.

[1067] The evidence of Michael Maswabi Nuwe has been referred in more detail

earlier. This witness testified about a convoy which left at night from the offices of the

DTA and they were destined for Angola. At the DTA office before they departed they

378

were joined by Postrick Mwinga. The witness identified Postrick Mwinga in court as

accused no. 23.

[1068] Alfred Kupolo Kupolo testified that Postrick Mwinga was at Sachona and was

responsible for roll calls. According to this witness, Postrick Mwinga was a firearm

instructor at Sachona, was an instructor at Lyibulibu, and was with him at Mahalape

prison in Botswana. At Mahalape prison he was appointed as a group leader in

Dukwe, and gave theoretical training about firearms in Dukwe. This witness identified

the accused in court as accused no. 23. During cross-examination by Mr

Samukange it was put to the witness that the accused was never in the camp and

had never joined them. The witness disagreed. It was put to the witness that the

accused will tell the Court that he first met the accused in Dukwe. The witness

disagreed and added that the accused was his instructor at Sachoma.

[1069] Willem Eiman testified that during the year 2000 he was a member of the

Namibia Police Force stationed at Katima Mulilo as a fingerprint expert. On 2

January 2000 he accompanied (the late) Inspector Francis, another warrant officer,

and one Postrick Mwinga. He took photographs of pointing-outs made by Postrick

Mwinga to Inspector Francis. He testified that prior to the pointing-outs Postrick

Mwinga was informed by Inspector Francis that he was not forced to do any pointing-

outs and that pointing-outs would be used as evidence in a Court of law. According

to Eiman the conversation between Inpsector Francis and Postrick Mwinga was

conducted in the English language. It was the evidence of this witness that amongst

the various places pointed out by the accused, included Makanga base from where

the attack was launched and Katounyana Police Camp which was one of the

institutions which had been attacked on 2nd August 1999. This witness confirmed

that the photographs contained in Exhibit EHJ were the photographs taken by

himself.

[1070] I must observe that what was said by Inspector Francis to Postrick Mwinga

could only have been testified to by Inspector Francis. Eiman can obviously testify

about what he heard was said by Inspector Francis. What is not clear is whether the

accused person had been informed of his right to legal representation prior to

making the pointing-outs. I have reservations about whether the pointing-outs in

379

these circumstances can be considered as admissible evidence against the

accused. This witness was not cross-examined.

[1071] The accused did not testify. I am of the view that, even if Exhibit EHJ were to

be excluded, the evidence presented by the State required an answer from the

accused person. The reference to the cross-examination by Ms Aggenbach of

witness Kupulo cannot assist the accused person. The version of the accused was

put to the witness as counsel was duty bound to do, but that does not elevate such

instructions put to the witness as evidence. The evidence by Kupulo stands

uncontroverted. The evidence of Kupulo referred to earlier was that the group of

people was the group of 92 who, after the death of Victor Falali, fled to Botswana.

[1072] I am satisfied that the evidence presented by the State, in the absence of any

testimony by the accused persons, proves beyond reasonable doubt the commission

of an overt act with the required hostile intent and that the accused stands to be

convicted of the crimes referred to hereunder.

Ndala Saviour Tutalife (accused no. 24)

[1073] Harrison Mufungulwa Sikumba testified that the accused is his brother and

that the accused went missing from their village since 1998 and was only seen about

a week after the attacks on Katima Mulilo on 2nd August 1999. The witness testified

that the accused informed him that he had returned from Botswana. The testimony

of this witness was that the accused informed him that he was forced by his leaders

to join the CLA, that he was at Katouyana where ‘shootings’ took place and that he

managed to escape from Katouyana. The accused then requested to be taken to his

father so that his father could take him to the Chief. The Chief was then informed,

who in turn sent for police officers to arrest the accused. This witness testified that

after the arrest of the accused he discovered an AK 47 rifle, a magazine, a

camouflaged trouser, a brown cloth and a rung in the courtyard of the accused. This

discovery was made according to this witness after the accused had written a letter

from prison in which he indicated where these items could be found. This witness

was not cross-examined and his evidence must be accepted as uncontroverted.

380

[1074] It was submitted by Ms Aggenbach that what was said to this witness to the

effect that he came from the bush, that he was forced by his leaders to join the CLA

and that he was at Katouyana is inadmissible hearsay. I disagree. What was said

by the accused where admissions to his brother about his involvement in the attack

on Katima Mulilo on 2nd August 1999. I must accept that what was said by the

accused was said freely and voluntarily. There is no suggestion that he was under

any compulsion to do so when he so informed his brother. The fact that the accused

elected not to testify does not convert what he said into inadmissible hearsay. It

remains incriminating evidence against him. It is significant that counsel does not

deny that the accused has said to his brother what his brother had testified to in his

evidence-in-chief.

[1075] It was further submitted by Ms Aggenbach in respect of the items discovered

on the basis of a letter received from the accused that this is highly improbable as all

letters are censored and that the accused would have been extremely naïve to do so

if the items were indeed left by him. I accept that there is censorship of mail of

prisoners leaving the prison premises but there is no evidence that all letters are

censored, and to do so amounts to speculation. In any event the fact that those

items had been discovered as a result of a letter received from prison was never

disputed. The evidence was that the letter was not available because it was probably

washed with clothes.

[1076] Jennifer Nando Tutalife, the sister of the accused, testified that the accused

arrived at night at her courtyard during the time of the State of Emergency. She

asked him where he was coming from and he then said that he came from Dukwe,

Botswana.228 The accused then requested to see their father in order for the father

to take him to the traditional Khuta. The witness further corroborates the testimony

of Harrison Sikumba in respect of the subsequent events.

[1077] Jacobus Hendrik Karstens testified that during August 1999 he was a member

of the Namibian Police Force and held the rank of Detective Inspector and was

stationed at Katima Mulilo. On 17 August 1999 he was requested by Inspector

Sydney Philander to accompany him to a pointing out. Police Officer Luponjani, a

photographer, also accompanied him. Near Makanga in the bushes the accused

228 P 24731 line 3

381

pointed out a rebel base. He testified that he observed that people had stayed there

from the way the bushes had been arranged. He observed inter alia a fireplace,

places where people had slept, empty containers, water cans, torches, various

house hold utensils, a 210 litre green drum, a pair of black shoes, loose bandages

and 14 bags of ‘Namibia Sun’ maize meal. Karstens testified that his only role that

day was to witness the pointing-outs. He was not involved in anything else.

Inspector Philander was not called to testify about the pointing-outs by the accused

on 17 August 1999. There is therefore no evidence in respect of the process

followed prior to the pointing-outs. There is accordingly no evidence that the accused

had been informed of his right to legal representation and what his response was.

[1078] The State has the onus to prove that the pointing-outs was made freely and

voluntarily and that an accused person had made an informed decision after his

constitutional rights had been explained and after he had been warned according to

the Judge’s Rules. The record is silent in respect of these requirements. In the

absence of such evidence, the evidence of Karstens about a pointing-out by the

accused person is inadmissible. The State in its heads of argument referred to

Exhibit EGO(2) which indicated that the accused was to have obtained a donation of

firearms from Makanga.

[1079] The accused person elected not to give evidence. I am satisfied that the State

has in the absence of any evidence from the accused proved an overt act by the

accused with the required hostile intent, beyond reasonable doubt and that the

accused stands to be convicted of the offences mentioned hereunder.

Brighton Simisho Lielezo (accused no. 31 )

[1080] Beauty Mukelabai Munyandi testified about a meeting she had attended which

had been convened by Induna Imushu in Zambia. Councilor Conrad Walvifa said at

this meeting that the children of Caprivi and the children of Zambia should join to

form one State. She further testified about an incident when she saw John Samboma

in Imushu together with 12 other men. John Samboma was in possession of two AK

47 rifles and that the accused was in the company of John Samboma at the time she

had seen Samboma with AK 47 rifles. I have earlier discussed the criticism against

the witness regarding her ability to identify an AK 47 rifle and my conclusion is that

382

from her own testimony she was not in a position at that stage to distinguish

between various firearms and her testimony that what Samboma carried were two

AK 47 rifles cannot be safely accepted as evidence against the accused persons.

[1081] Naseb Kambindo Thihumisa testified that on 27th/28th July 1999 he was in the

company of his brother Brighton Shimusho Lielezo who said to him that those who

came from Botswana were going to be killed and that he, i.e. the witness, had to go

and look for his families if the witness wanted to join others, i.e. the rebels in the

bush. The witness testified that he refused. The testimony of this witness implies

that his brother tried to recruit him. The witness testified that after a few days his

brother went missing from their village. The witness was not asked to identify his

brother. Mr July in his heads of argument submitted that this witness made an

undisputed confession, Exhibit EHR. Exhibit EHR was ruled inadmissible.

[1082] It was submitted by Ms Aggenbach that there is no shred of evidence which

places the accused anywhere at Makanga on the evening of the attack or at any

place of attack. I am of the view that the evidence presented by the State, in spite of

the failure of the accused to testify, does not prove the commission of the offences

preferred against him, beyond reasonable doubt.

John Panse Lubilo (accused no. 50)

[1083] Hobby Habaini Lusilo testified that on 2nd August 1999 his brother-in-law,

Richard Masupa Mungulike (accused no. 34), told him that he was with friends at

Mpacha military base where there was fighting and that soldiers died. This witness

was questioned about this fighting in evidence-in-chief and the following appears:229

‘Yes, is that the only thing he told you regarding the fighting? . . . He told me that

Kempase, that one of them Mpase who had gone together with him, he noticed that

his big toe . . . was shot.

Who was shot? . . . John Mpase.’

[1084] The witness testified that they then went to Sikelenge village in order to drink.

The record continues as follows:230

229 P 8147230 P 8150

383

‘So we went myself and my brother-in-law to the place of John and I really confirmed

that it was true.

What did you confirm, what did you do? . . . I saw with my own eye, myself I saw.

What did you see? . . . Yes, I saw where he was wounded and even himself he said

that yes, it is a bullet.

Where was he wounded? . . . On the big toe . . .

Now he said it was a bullet, did he mention where he was, at which place he was

shot . . . He said that it was at Mpaha, . . .

Now do you know what is the full names of John Panse? . . . Yes

Please tell us . . . John Panse Lubilo.’

[1085] This witness when given the opportunity to identify John Panse Lubilo failed to

do so and stated that he was unable to do so because their faces have changed.

This witness testified that he knew John Panse Lubilo as the village Induna. It was

submitted by Ms Aggenbach in her heads of argument that this witness surely knows

John Panse Lubilo is certain, as he testified to that effect and that according to State

witness Sem Mbinge this witness was the one who pointed out the courtyard of the

Induna of Kaenda to him. It was submitted that if this witness is to be believed he

should not have had any problems to identify the accused.

[1086] Sem Mbinga, a member of the Namibia Police Force, testified that on 30

August 1999 he, himself, together with other police officers and accompanied by

Hobbi Sinyabata left for Kaenda village. On their arrival Hobbi Sinyabata pointed out

two individuals who became known to him as Richard Masupa Mungulike and

Joseph Kabuyana. Sinyabata also pointed out the courtyard of the Induna. The

Induna was absent but his wife was present and the wife accompanied them to the

next village namely, Nyanga-Nyanga and pointed out her husband who was

subsequently arrested by Inspector Karstens.

[1087] Jacobus Hendrik Karstens testified that on 1 September 1999 he was

approached by sergeant Chizabulyo who informed him that the accused was

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prepared to make a pointing out. The witness testified that he identified himself to

the accused person and informed him of his right to remain silent and his right to

legal representation. The witness testified that he informed the accused that should

he wish to continue to make a pointing out, photographs would be taken which would

be used as evidence against him in a court of law. He testified that the accused

understood what was explained to him. Thereafter on the instructions of the accused

they proceeded to Kaenda area. They stopped next to the road and the accused led

them a few hundred metres into the bush were he pointed out a spot between two

small trees. The accused was instructed to remove what was buried there. The

accused dug a hole and removed a white plastic bag. Inside this bag was a G3 rifle

and a magazine. Photographs were taken by officer Mbinge. Thereafter they

returned to the police station.

[1088] Inspector Karstens testified that sergeant Chizabulyo acted as an interpreter

because the accused was not fluent in the official language and that at the time he

had informed the accused of his rights only himself and sgt Chizabulyo were present

with the accused. Inspector Karstens testified that he observed an injury on the left

toe of the accused which appeared to have been caused by a bullet. When asked

about the injury, the accused explained that he was running back to his village and

allegedly stepped into a stick which caused the injury. This witness was not cross-

examined.

[1089] What is apparent to me from the testimony of this witness is that the witness

did not testify about the response of the accused person when his rights were

explained to him.231 What he testified was that the accused understood his rights and

that he cooperated. It does not appear from the record whether the accused

informed him that he wished to obtain such legal representation or that he waived his

right to legal representation. Nothing was explained that he may consult with a legal

representative prior to the pointing-out. Nothing was said about legal aid. Another

aspect that must be touched upon is namely the fact that sergeant Chizabulyo was

used as an interpreter. Sgt Chizabulyo was one of the investigating officers in this

case, and, as pointed out by Ms Aggenbach had a vested interest in the matter.

What was interpreted is unknown. Sgt Chizabulyo was deceased by the time

inspector Karstens testified.

231 P 31742 – 31744..

385

[1090] I am not satisfied that the pre-conditions to have such a pointing out to be

admitted as evidence against the accused person were met by the State.

Consequently this pointing out by the accused cannot be used on evidence against

him.

[1091] The evidence against the accused is that Hobbi Sinyabata testified that he

observed a wound on the big toe of John Panse Lubilo, who told him that he was

wounded at Mpacha. Sinyabata failed to identify the accused in court but identified

the courtyard of John Lubilo whom he knew was an induna. Subsequently the wife of

the accused identified him. The evidence of Sinyabati was not disputed neither was

the evidence of Sem Mbinge. The evidence of Inspector Karstens was that he

observed an injury on the big toe of the accused person. Karstens, in my view, could

not express an opinion of what could have caused such an injury, but it is not denied

that the accused was injured on his big toe. The accused himself gave an innocent

explanation on how he sustained such injury according to Karstens. The accused

through the testimony of Sinyabati placed himself at Mpacha military base. This is an

admission by the accused.

[1092] I am of the view that the in the face of such evidence an answer was due by

the accused. I am satisfied that the evidence presented by the State proved the

commission of an overt act by the accused and the only reasonable inference in the

circumstances is that the accused had the required hostile intent at the relevant time.

I am satisfied that the State has proved beyond reasonable doubt that the accused

committed the offences mentioned hereunder.

Rex Lumponjani Kapanga (accused no. 63)

[1093] Bernard Kanzeka testified that Rex Kapanga attended a meeting in November

1998 which was addressed by Geoffrey Mwilima at the DTA office where Mwilima

informed the attendants about secession, the donation of money, and that people

must go to Botswana. It was submitted by Ms Aggenbach that there is no evidence

that the accused agreed or associated himself with what the speakers had said at

any of the two meetings testified to by this witness. The testimony about a meeting

addressed in December 1998 by Muyongo is a physical impossibility since Muyongo

was in Botswana at that stage and this must be common cause. Ms Aggenbach with

reference to the State’s head of argument232 pointed out that according to the State

232 On p 191.

386

the witness Shailock Sinfwa testified that the accused attended a meeting in 1994

where Muyongo informed the attendants that the UDP will separate from the DTA

and that Caprivi should be part of the Western Province of Zambia. Counsel

submitted that the record reflects that reference was made to a “Mr Rex” by the

witness and that it was the prosecutor who concluded that it must be Rex Kapanga,

accused no 63. It was submitted that this witness (ie Shailock Sinfwa) did not identify

the person “Mr Rex” as one of the accused persons before court.

[1094] The State in their heads of argument submitted that the witness Oscar

Mwisepi had identified the accused on having attended “secessionist meetings”233

whilst the record on that page reflects something different.

[1095] The evidence by Kanzeka that the accused attended a meeting in November

1998 must be approached with caution as he is a single witness and his evidence

should only be accepted if it is clear and satisfactory in all material respects. I am of

the view that the evidence presented by the State even in the absence of testimony

by the accused person is not of such a nature as to require an answer from the

accused in spite of the fact that the accused elected not to testify. I am of the view

that the State did not prove the commission of the preferred charges against the

accused person.

Brandan Luyanda Luyanda (accused no. 120)

[1096] The State in its heads of argument submitted that the accused was identified

in court to have been at Makanga before the attack on Katima Mulilo namely by

Ruben Bakabuha Sikwela, Bornbright Mutendelwa Kufwa, Given Iufela Ndungati,

and Thomas Franco Mukoya. The testimonies of these witnesses were ruled

inadmissible due to torture perpetrated on them prior to the extraction of their

witness statements by members of the Namibian Police Force.

[1097] It was submitted that the accused was in Dukwe. Michael Maluboka Ziezo

testified about an incident after the attack on Katima Mulilo where he was in the

company of Chikomozo O’Brien Mafendo when he observed Brendan Luyanda with

233 P 767 lines 16 – 20.

387

a “bandage” on his head. This witness testified that he asked Brendan where he was

coming from and Brendan replied that he was coming from Ngwezi and then he (ie

Brendan) proceeded walking. They followed Brendan to his house. There Mafendo

left them and he then asked Brendan again where he was coming from. Brendan

replied that he was coming from Mpacha Military Base which they had attacked.

When asked how it went, Brendan replied that it did not go well. Brendan further

informed him that he had a fire arm but did not shoot anybody. He testified that

Brendan is well known to him since they used to play soccer together. This witness,

when given the opportunity to do so, failed to identify the person he referred to as

Brendan Luyanda, as one of the accused persons before court.

[1098] The witness Michael Nuwe gave incriminating evidence against Brendan

Luyanda, but when given the opportunity to identify him, made it clear that Brendan

Luyanda was not in court. Mukushi Events Kaine Zorrow gave incriminating evidence

against one Brendan Luyanda, but failed to identify Brendan Luyanda as one of the

accused persons before court.

[1099] The State in their heads of argument referred to Exhibit EGO (2) where

reference is made to a fire arm with Brendan Luyanda at Masida (R1 rifle). As

testified by Andreas Nelumbo and Moses Shaama, the accused and Austen Ziezo

(accused no 121) reported at Buitepos Border Post from Botswana and had in their

possession emergency travel documents on 30 August 2001.

[1100] The evidence presented by the State, in my view, does not, in the absence of

testimony by the accused, prove the commission of the offences preferred against

the accused person.

Frans Muhupulo (accused no. 122)

[1101] Kruger Chasunda testified that in August 1999, he was at his village Sivanga

when Frans Muhupulo arrived at this courtyard and requested a fire arm from him.

The witness testified that the accused knew that he possessed a R1 rifle. The

testified that the accused is his cousin. According to the witness, Frans Muhupulo

informed him that he needed the fire arm for a short while in order to hunt. The gave

him the fire arm which was in good operational condition, together with two rounds of

ammunition. The witness testified that at a later stage he received information that

the police were looking for Frans Muhupulo. He thereafter went to Frans Muhupulo

388

and asked him why the police were looking for him. Frans replied that the police

were suspecting that he took part in the attack. When he asked Frans whether this

was true Frans gave no answer – just remain silent. The witness did not identify

Frans Muhupulo as one of the accused persons before court.

[1102] The State in their heads of argument submitted that the accused was at

Makanga camp on 1st August 1999 where the final preparations were made before

the attack on 2nd August 1999. The State relies on the testimonies of Ruben Sikwala

and Given Ndungati in support of this submission. This court had ruled the evidence

of these two witnesses as inadmissible due to the torture perpetrated on them prior

to extracting witness statements form them, by members of the Namibian Police

Force. The State also referred to the fact that the name of the accused appears on

the deployment list Exhibit EGK (1).

[1103] I am of the view that the evidence presented by the State does not prove the

commission of the preferred charges against him beyond reasonable doubt in spite

of the failure by the accused to testify.

Witnesses warned in terms of s 204 of Act 51 of 1977

[1104] A number of State witnesses were warned in terms of the provisions of s 204

of Act 51 of 1977. This section protects accomplices and other witnesses who will,

through their evidence have to disclose that they themselves have committed

offences. This section makes it possible for the State to call one or more concurrent

wrongdoers as witnesses against the other wrong doers. Such a witness may be

indemnified against prosecution of specific offences where the Court is satisfied that

the witness has answered frankly and honestly all questions put to such a witness. A

Court however may refuse to give such indemnification. Such a witness, because of

his or her interest in the ruling by the Court whether or not to discharge such witness

from prosecution, has a right to be heard before the Court comes to a decision.

[1105] My understanding of the authorities is that such a determination can be made

after judgment but before the conclusion of the trial. I shall therefore for this reason

not at this stage deal with the issue of the indemnification or otherwise of those

witnesses warned interms of s 204.

389

The Charges of High Treason, Murder and Attempted murder

[1106] I have indicated earlier, at para 43, the submission made on behalf of the

State that should this Court find sufficient evidence has been presented by the State

to establish the crime of high treason or sedition, the other charges in the indictment

should be regarded as overt acts and that those other charges be regarded as being

stopped on the instructions of the Prosecutor-General, except the charges of murder

and attempted murder.

[1107] I wish to consider this statement in view of the rule against the duplication of

convictions with regard to the provisions of s 83 of Act 51 of 1977. Two practical aids

were developed by the Courts in order to determine whether there is a duplication of

convictions, namely, the ‘same evidence’ test and the ‘single intent’ test. The same

evidence test provides that if the evidence which is necessary to establish one

charge also establishes the other charge, there is only one charge. The single intent

test provides that if there are two acts each of which would constitute an

independent offence but there was one intent and both acts are necessary to realize

this intent, there is only one offence. The elements of the crime of high treason are

an overt act, unlawfully committed, by a person owing allegiance to the State, which

possesses majestas, and hostile intent. Violence is not a necessary element of of the

crime of high treason. The history abounds with so-called ‘Bloodless coup d’etat’s’

were governments have been overthrown without firing one single shot.

Nevertheless, the crime of high treason is committed in these circumstances.

Violence however is often inevitable as in the instant case.

[1108] Therefore, if the same evidence test is applied, the evidence necessary to

prove high treason would not necessarily prove the crime of murder and therefore

two offences have been committed. In respect of the single intent test it would

appear to me that if that test is applied, the conclusion would be that more than one

offence was committed. Hostile intention may include an intention to overthrow the

State but the crime of high treason is also committed even in the absence of an

intention to overthrow the State, where for instance, the intention was merely to

coerce the governing authority, by force. Hostile intention, in my view, may include

the intention to murder but that will not necessarily be the case, and it will depend

390

upon the circumstances of a particular case whether hostile intention excluded the

intention required to commit the crime of muder.

[1109] It was held in S v Globler234 that in order to determine whether more than one

crime had been committed, would depend on the description of the offence, ie the

elements of the offence. In Globler, the accused was convicted of the crimes of

robbery and murder where he had entered a shop with a firearm with the intention to

intimidate the victims. In the course of the robbery a person was killed. The Court

found that there was no duplication of convictions with reference to the different

elements of the crimes of murder and robbery. It was also held in Globler that it is

impossible to determine a formula which would cover each and every case and to

provide an answer to the question of whether or not there has been a duplication of

convictions.

[1110] For the reasons stated, I am of the view that to convict an accused person on

a charge of high treason as well as on a charge of murder would not amount to a

duplication of convictions. I have indicated at para [33] that the crimes of high

treason, sedition and public violence overlap where a number of people acting in

concert and with hostile intent assemble and disturb the public peace. Therefore,

where an accused has been convicted of high treason, it would be a duplication of

convictions to convict such a person for the crime of sedition or public violence as

well.

[1111] The record is permeated with words and phrases used during meetings, in

documents, and during the testimonies of State witnesses namely: ‘cutting the

region’, ‘fire-arms’, ‘weapons of war’, ‘fighting with firearms’, ‘liberation struggle’,

‘secession’, ‘military wing’, ‘army’, ‘CLA/CLM’, and by ‘violent means’. These words

and phrases are the antithesis of the words: negotiations, democratic means and

peacefully. In my view, the co-conspirators, and those who became aware of the aim

to secede the Caprivi region by violent means and failed to report it to the authorities

had foreseen that violence would be inevitable and that it would invariably result in

the killing of human beings and associated themselves with such an eventuality.

234 1966(1) SA 507 (AA) at 512A.

391

Order: Convictions

[1] The following accused persons are hereby convicted of:

Count 1-High Treason;

Counts: 5, 6, 7, 8, 9, 10, 11, 12 and 13 of murder; and

Counts: 32, 34 to 41, 43 to 50, 52,56,58,60,62,63,64,66,68,70,76,78,80,84,87 to

90,92,97,99,102,107 to 110, 112, 116, 118, 119, 125, 127, 129, 130, 133, 135, 136,

138,141,142,144,146,151,153,155,156,159,160,164,165,169,171 to 173, 178, 185,

187,193,195,196,199,202,209,213,228,230,231,234,239,249,261,276 and 277 of

attempted murder.

1. Bollen Mwilima Mwilima (Accused no 65)

2. Alfred Lupalezi Siyata (Accused no 80)

3. Charles Nyambe Mainga (Accused no 87)

4. Mathews Muyandulwa Sasele (Accused no 100)

5. Berhard Maungolo Jojo (accused no 98)

6. Victor Masiye Matengu (Accused no 60)

7. Alfred Tawana Matengu( Accused no 79)

8. Mathews Munali Pangula (Accused no 59)

9. Richard Simataa Mundia (Accused no 104)

10.Georffrey Kupuzo Mwilima (Accused no 68)

11.Adour Mutalife Chika (Accused no 2)

12.Kingsley Mwiya Musheba (Accused no 9)

13.Rodwell Sihela Mwanabwe (Accused no 30)

14.Kester Silemu Kambunga (Accused no 102)

15.Fabian Thomas Simiyasa (Accused no 96)

16.Albert Sakena Mangilazi (Accused no 55)

17. Osbert Mwenyi Likanyi (Accused no 57)

18.Richard Libano Misuha ( Accused no 48)

19.Moses Chicho Kayoka (Accused no 47)

20.Bennet Kacenze Mutuso (Accused no 69)

21.Charles Mafenyeho Mushakwa (Accused no 73)

22.Raphael Lyazwila Lifumbela (Accused no 6)

23.Sikunda John Samboma (Accused no 54)

392

24.Aggrey Kayaba Makendano (Accused no 11)

25.Theddeus Siyoka Ndala (Accused no 70)

26.Martin Siano Tabaundule (Accused no 71)

27.Chris Puisano Ntaba (Accused no 7)

28.Postrick Mowa Mwinga (Accused no 23)

29.Ndala Saviour Tatalife (Accused no 24)

30.John Panse Lubilo (Accused no 50)

2. The following accused persons are found not guilty of the charges preferred

against them:

1. Leonard Mutonga Ntelamo (Accused no 84)

2. Kambende Victor Makando (Accused no 90)

3. Norman Christopher John Justus (Accused no 93)

4. Muketwa Eustace Sizuka (Accused no 95)

5. Gerson Luka Luka (Accused no 101)

6. Robert Lifasi Chelezo (Accused no 97)

7. Richard Limbo Mukawa (Accused no 91)

8. Eugene Milunga Ngalaule (Accused no 64)

9. Mwilima Gabriel Mwilima (Accused no 61)

10.Jimmy James Mtemwa Liswaniso (Accused no 58)

11.George Kasanga (Accused no 77) - But guilty on count 272: C/S 2(c) read

with section 81(1)(a) of the Departure from the Union Regulation Amendment

Act, Act 34 of 1955, as amended by section 2 of the Departure from Namibian

Regulation Act, Act No. 4 of 1993 – ILLEGAL EXIT FROM NAMIBIA.

12.Mashazi Allen Sameja (Accused no 67)

13.Richwell Mbala Manyemo (Accused no 115)

14.Gabriel Nyambe Ntelamo (Accused no 88)

15.Oscar Kashalula Muyuka Puteho (Accused no 49) – But guilty on count 273:

C/S 2(c) read with section 81(1)(a) of the Departure from the Union

Regulation Amendment Act, Act 34 of 1955, as amended by section 2 of the

Departure from Namibian Regulation Act, Act No. 4 of 1993 – ILLEGAL EXIT FROM NAMIBIA.

16.Martin Sabo Chainda ( Accused no 103)

393

17. Ignatius Nawa Twabushalila (Accused no 44)

18.Patrick Itwa Likando ( Accused no 89)

19.Bernhard Mucheka (Accused no 75)

20.Tiiso Ernst Manyando ( Accused no 37)

21.John Samati Yalubbi (Accused no 53)

22.Oscar Nyambe Puteho (Accused no 72)

23.Francis Buitiko Pangala ( Accused no 17)

24.Sylvester Lusiku Ngalaule (Accused no 8 )

25.George Masialeti Liseho ( Accused no 15) – But guilty on count 274: C/S 6(1)

of the Immigration Control Act 7 of 1993 – ILLEGAL ENTRY INTO NAMIBIA26.Austen Lemuha Ziezo (Accused no 121)

27.Andreas Puo Mulupa (Accused no 26)

28.Joseph Kamwi Kamwi (Accused no 3)

29.Herbert Mboozi Mutahane (Accused no 5)

30.Roster Mushe Lukato (Accused no 18)

31.Davis Chioma Mazyu (Accused no 16)

32.Brighton Simisho Lielezo (Accused no 31)

33.Rex Lumponjani Kapanga (Accused no 63)

34.Brandon Luyanda Luyanda (Accused no 120)

35.Frans Muhupolo ( Accused no 122)

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

E P B HOFF

Judge

394

APPEARANCES

STATE: T July (with him A Adams)

Of Office of the Prosecutor-General, Windhoek

DEFENCE: P Kauta (Accused no: 65, 80, 84, 87, 90, 93, 95,

100 & 101);

P McNally (Accused no: 97, 98, 60, 91, 79, 64,

61, 58, 59, 77, 104 & 67);

V Kachaka (Accused no: 115; 30, 102; 96; 55;)

J Neves (Accused no:75; 37;68; 2; 9);

G Nyoni (Accused no: 103; 57; 44; 49; 88; 89);

J Samukange (Accused no:,69; 72; 73)

C Dube (Accused no: 53; 48; 47)

C Kavendjii (Accused no: 15; 11; 121)

P Muluti (Accused no 17; 6; 8; 54)

I Agenbach (Accused no: 3; 5; 7; 16; 18; 23; 24;

26; 31; 50; 63; 70; 71; 120; 122)

Instructed by Directorate of Legal Aid, Windhoek