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The State v Karipi Melvin Sibungo and Another Sec 174 Judgm.cc 06 - Tommasi J 15 Mar 2011

The State v Karipi Melvin Sibungo and Another Sec 174 Judgm.cc 06 - Tommasi J 15 Mar 2011

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Published by André Le Roux
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Published by: André Le Roux on Mar 29, 2011
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CASE NO.: CC 06/2010
 
IN THE HIGH COURT OF NAMIBIAHELD AT OSHAKATI
In the matter between:
THE STATEandKARIPI MELVIN SIBUNGO 1
st
ACCUSEDNICKSON MUTONGA MWIYA 2
nd
ACCUSED
CORAM: 
TOMMASI, J
Heard on: 01
– 
04/03/2011, 7/03/2011, 9 - 10/03/2011Delivered on: 15/03/2011
JUDGMENT:TOMMASI J:
[1] Both accused were charged with murder and robberywith aggravating circumstances in that they on 27 February 2006 in the early
 
2
hours of the morning stabbed the deceased and robbed him of his cell phoneand an unknown amount of cash.[2] Both accused pleaded not guilty and in their Plea explanations indicatedthat they were not at the scene as they were sleeping at the time.[3] The State handed in by agreement
the State’s Pre
-Trial Memorandum;the reply thereto by both accused; the amended reply by both accused; a
document titled “Confession in terms of s 217 of the Criminal Procedure Act
1
made before the Magistrate Shakala by Accused 2; the report on the medicolegal post-mortem examination; an affidavit in terms of s 212 (4) of theCriminal Procedure Act; certificate of Post Mortem; and the record of the
proceedings in the Magistrate’s Court
 [4] Initially the identity, the post
– 
mortem findings and the fact that thedeceased did not sustain any further injuries were placed in dispute byaccused 1 but during the trial it became apparent that these issues were nolonger in dispute.[5] The State called the following witnesses: the doctor who conducted thepost-mortem examination; an eye witness, Robert Simasiku, his neighbour,
1
Act 51 of 1977
 
3
Doreen Nkando, a former police officer, Constable Kwenani who was living inthe same street where the incident took place, Detective Sergeant Coetzee whocompiled the photo plan; Det. Sgnt Antonius Gabriel; and Det. Sgnt Veldskoen.[6] A short summary of their evidence is as follow: On 27 February 2006, ataround 4H00, the deceased, Samuel Johannes, died of a single stab wound atHouse no 765, Choto, Katima Mulilo. This, from the description of all thewitnesses, is a shack with no fence and the yard extends directly onto the road.It was dark at the time but the yard was illuminated by a street light directlyacross the road. One single globe was on inside the house. Robert Simasikuwas the only witness who saw the deceased and two assailants close to thedoor of the house. All the other witnesses were informed by Robert whattranspired and they made some of their own observations.[7] Robert was woken by a noise outside the house and he got up toinvestigate. He opened the door and saw three persons close together, two of them facing him and another with his back to him about 2.5 meters from thedoor. The two assailants ran away and he recognised accused 1. He has seenhim before in town and he heard from people that his name was Karipi. Hesaw his back and the side of his face. He also saw the clothes he was wearing.The other assailant he did not recognise but observed the clothes he waswearing. The deceased entered the room and fell down. He went to wake the

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