1

REPUBLIC OF NAMIBIA NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CR 11/2015

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

HENDRICKS MATE KAKOMA ACCUSED

(HIGH COURT MAIN DIVISION REVIEW REF NO. 251/2015)

Neutral citation: S v Kakoma (CR 11/2015) [2015] NAHCMD 58 (13 March 2015)

CORAM: SHIVUTE J et MASUKU, AJ

Delivered on: 13 March 2015

Flynote: The accused was charged with robbery it being alleged that he used violence to
induce the complainant to part with his items. After reviewing the evidence, the trial court held
 2

that the offence of robbery had not been proved and found the accused guilty of assault with
intent to cause grievous bodily harm and theft. On automatic review, the High Court found that
the Magistrate erred because the violence and the theft constituted a single transaction. The
court considered the propriety of convicting the accused on two competent verdicts and held
that it would have been competent to do so if the offence of robbery had not been borne out.
The court also reiterated the need by trial courts to explain competent verdicts to unrepresented
accused at the stage of tendering their pleas. The court found the accused guilty of robbery and
remitted the matter to the Magistrate’s court for sentencing in line with the proper verdict.

JUDGMENT

MASUKU AJ

1. This matter came before me on automatic review from the Magistrate Court of
the District of Katima Mulilo.

2. The accused was arraigned before that court charged with a single count of
robbery, it being alleged that on 9 August, 2013 at or near a bush between
Cowboy and Choto in the Katima Mulilo, District, he unlawfully and with the
intention of forcing into submission, assaulted Mr Sililo George Machine by hitting
him with a spade on the left arm and on the head and unlawfully and with intent
to steal, took from the aforesaid Mr Machine cash in the amount N$700, a touch
screen phone valued at N$898 and a pair of eye glasses valued at N$1000. In
total the items stolen are valued at N$2 598 and were the property of or in the
lawful possession of the said Mr Machine.

3. The accused, pleaded not guilty and indicated that he would conduct his own
defence. In support of its case, the prosecution paraded four witnesses who were
 3

cross-examined by the accused. At the end of the State’s case, the accused was
called to his defence and he elected to adduce sworn evidence. I will presently
chronicle the salient portions of the evidence led by both protagonists, with a
view to arriving at a conclusion as to whether the accused was correctly
acquitted of the offence of robbery. I will also consider whether the accused’s
conviction, as he was of two counts, being assault with intent to cause grievous
bodily harm and theft was justified and comely.

4. The first witness was the complainant, Mr Sililo George Machine. It was his
evidence that on the day in question, around 16h00, he was walking on a path
between an area called New Cowboy, and Choto. He was carrying on his person
an amount of N$700 and a mobile telephone with a touch screen. On the way, he
found the accused whom he knew by sight. It was his evidence that the accused
was known to him as he was a renowned firewood vendor in that locality. As he
approached the accused, he was puzzled by the fact that the said person, who
was carrying a spade, stood in the middle of the beaten path and refused to give
way.

5. On seeing that the person was not moving, the complainant asked if the accused
was a real person as he stood unwaveringly in the centre of the footpath. The
complainant then decided to move off from the path and when he was about two
metres away from the said man, he recognized that it was the accused and the
latter started chasing him, breathing threats that he would kill the complainant.
The accused struck him thrice with the spade, once on the arm and twice on the
head and he ran away.

6. It was his evidence that as he was badly beaten and was bleeding profusely, he
did not see clearly what was going on and he lay on the ground. He struggled to
get up and then realized that his items mentioned above were no longer in his
possession or anywhere near him. He was eventually assisted by a good
Samaritan who went to call the police. He was to be later taken to the police
 4

station and later to the hospital where he was admitted for four days as his
injuries were being attended to.

7. It was his evidence that later, he was able to identify the accused as the person
who assaulted him earlier and this was in the presence of the police. He testified
further that during this occasion, the police conducted a body search of the
accused and retrieved from his person, two mobile telephones from him and one
of which belonged to the complainant. The nub of the cross examination by the
accused was largely irrelevant to the issues raised in the evidence in chief. The
fact of the assault of the complainant by the accused was not challenged nor the
allegation that the complainant’s mobile telephone was recovered from the
accused.

8. The second witness was Mr Jimmy Sikwela. His evidence was that on the date in
question he was signaled by a man who told him that he saw some two men
fighting along Mafuta road. This information was imparted to this witness
because he was a member of the community police. As he approached the
scene, he saw the accused running away with a spade which had blood stains.
The accused told this witness that he had been attacked by certain people.

9. Mr Sikwela testified that he left the accused and proceeded towards the
compound where he met the complainant who informed Mr Sikwela that he had
been assaulted by a certain person who did so because he, the complainant,
was a member of the community police. The complainant had open wounds on
both his arm and head. Mr Sikwela went to report the matter to the police. The
police came and took the complainant to hospital. Mr Sikwela was later told by
the police that the accused was at the police station. In cross-examination, the
accused put to Mr Sikwela that he informed him when they first met that
someone had assaulted him. This Mr Sikwela denied. That was the main issue
raised in cross-examination.
 5

10. The next witness was a police officer Mr Mwala Kevin Kasuka. He testified about
his activities after being told by Mr Sikwela that the complainant had been injured
in some location. It was his evidence that he, in the company of other officers,
proceeded to the scene where they found that the complainant was injured and
was bleeding on his head and arm. Other police officers were detailed to go on a
man-hunt for the accused. The spade was recovered from the scene.

11. This witness further confirmed that when the accused was at the police station,
he was searched by the police and a mobile telephone was recovered from him.
The complainant identified this phone as his. The accused explained that he
picked up this said phone because he wanted to prevent other people from
picking it. Nothing of consequence was raised by the accused in cross-
examination. Another police officer was also called as the next witness and his
evidence dovetailed in material terms with the evidence of the third police
witness and it is unnecessary to chronicle this evidence as it adds no new
material facts to those already brought by the other witness.

12. At this juncture, the prosecution closed its case and the accused was called to
his defence. He elected to adduce sworn evidence. His evidence was that on the
day in question he was in the bush where the complainant found him and asked
if the accused knew him. The accused denied knowledge of him, where after the
complainant told him if the accused did not know him he would know him that
day. The complainant accosted the accused and picked up a brick and assaulted
the accused with it on the left leg. The accused then went to pick up his spade
with which he threatened to assault the complainant with it should he persist in
coming any closer to where the accused was.

13. The complainant was not deterred. He approached the accused in a menacing
manner and trying to apprehend the latter. It is at that point that the accused,
according to his evidence, hit the complainant with the spade on his arm and the
latter sustained an injury. It was the accused’s further evidence that he then
 6

decided to stab the complainant with the spade on his chest. The complainant
retreated at this stage and picked up two bricks. The accused took to his heels
and the complainant followed him in hot pursuit. The accused then stopped
running away and the complainant threw a brick at the accused which the
accused blocked before it could land on his head. This brick went up in the air
and again landed on the accused’s head.

14. At that point, the accused went on the ascendency and gained strength. He hit
the complainant on the head and the latter fell down to the ground. His mobile
telephone also fell to the ground. The complainant failed to stand up and began
crawling. The accused then picked up the phone and ran away towards the road
where he boarded a vehicle and went to the police station. At the police station,
the accused testified that he told the police that he picked the phone that
belonged to the person he was engaged in a fight with. It was his evidence that
he picked this phone when its owner dropped it. Lastly, he testified that the police
then took the phone from him.

15. In cross-examination, the accused denied that he assaulted the complainant first
and claimed that he acted in self-defence as the complainant first hit him with a
brick. It was put to him that his evidence on this aspect was an afterthought for
the reason that it had not been put or suggested to the complainant. In response,
the accused stated that he had proof that he was injured and this was in the form
of a document referred to as J88. Taxed about his taking of the phone and the
divergent version of the incident, namely that he took the phone in order to trace
the complainant and the later version that he wanted to ensure no one picked it,
the accused testified that he did not know the complainant and that was why he
went to the police.

16. The accused’s answer to this question was unclear and unconvincing. He could
also not reconcile his version regarding why he took the phone with the fact that
he never volunteered the phone when he got to the police station, considering
 7

that it was only a search conducted by the police on his person and which
yielded the complainant’s phone. The accused however conceded that he is the
one who assaulted and caused injuries on the complainant but claimed he was
acting in self-defence. He denied that he robbed the complainant of his items.

17. The accused called one witness whose evidence was irrelevant to the case. This
was Mr Temba Akalilwa Simasiku who testified that the accused was his
nephew. He, without being prodded, volunteered that he had limited knowledge
of the case against the accused. It was his evidence that he received a call from
the accused to come and assist him as he was fighting with another person in the
bush in Mafuta. Under cross-examination, this witness testified that he received
this call in the morning. It was put to him that this call may have related to
another incident as the one under enquiry happened in the afternoon and the
witness said he did not know. He could not even remember the date of the call.
He eventually conceded that the call he received from the accused related to
another totally different incident. This marked the end of the evidence in the trial.

18. In the judgment, the court a quo found that the accused did not assault the
complainant in order to induce him to submit to the taking of his property. The
court held that the accused’s version that the phone fell and the accused picked
it up was reasonably possibly true. This was more the case because, so the court
a quo held, the complainant did not feel the accused searching his pockets. The
court remarked that the complainant was conscious and would have felt the
accused ransacking his pockets if the intention had been to rob him of his items.

19. In relation to the phone, the court found the accused guilty of theft without giving
any reasons for this finding. The court a quo, however, held, and correctly in my
view, that the prosecution had failed to prove the case of theft in relation to the
money and the pair of spectacles, given that the accused had very little time to
dispose of that property.
 8

20. The import of the court’s verdict was that the accused came to court charged with
a single count but went to prison convicted of two different offences, which the
court a quo held were both competent verdicts to the offence wherewith the
accused had been charged, namely, robbery. Was the court a quo correct in its
reasoning and conclusion on the evidence?

21. According to the learned author P.M.A. Hunt South African Criminal Law and
Procedure,1 robbery consists in the theft of property by intentionally using
violence or threats of violence to induce submission to the taking of it from
another. The question to be determined in this regard is whether the trial court
was correct in finding and holding that the crime of robbery had not been proved
in the instant case.

22. The court reasoned the matter thus:2

‘In cash (sic) the accused seems to have harboured a grudge against the
complainant for being a member (sic) the community Police and he so informed
him before he attacked him. The court therefore finds that accused did not
assault the complainant in order to induce him to submit and let the accused take
his property. Accused’s explanation that the phone fell and he picked it (sic)
found to be reasonably possibly true. The complainant did not feel the accused
searching his pockets. Although he had been seriously injured he was still
conscious and would have heard accused searching him.’

23. It would appear from the reason advanced that the only basis upon which the
court found that the offence of robbery had not been proved was that the
accused harboured a hatred of the complainant because he was a member of
the community police. This, the court found, was the reason for the attack on him
and not the intention of the accused to commit the offence of robbery. For that

1
VoI II, 2nd Ed, 1990 at p680
2
Page 29 of the Record
 9

reason, the court found, the attack was not actuated by a desire to induce the
complainant to part with his property. The second reason for this finding is that
the complainant never searched for and remove the complainant’s mobile phone
from his pockets but the mobile telephone fell from the complainant and the
accused merely picked it.

24. The first difficulty I have is with the finding that the accused assaulted the
complainant for his membership of the community police. The only person who
mentioned that the accused assaulted the complainant for that reason was Mr
Sikwela, who in turn said this is what the complainant had told him. The
complainant did not corroborate this, neither did the accused himself say
anything resembling this. The impression created by the trial court above is that
the complainant testified to that effect in his evidence, which he did not do.

25. More importantly, it is clear that the evidence adduced by Mr Sikwela to this
effect, was hearsay as it is what the said witness said he was told by the
complainant. It was therefore inadmissible. This is because the complainant did
not confirm that this evidence was true and neither did the accused put this in
cross-examination nor in his evidence. It appears to me to be erroneous to draw
such a far-reaching conclusion, based as it was on inadmissible hearsay
evidence. This is more so because this finding materially altered the entire
trajectory of the case and resulted in the court having to invoke two competent
verdicts in the instant case to convict the accused.

26. Secondly, the court found that this was not a case of robbery because the
complainant, though in full possession of his mental and physical faculties, never
felt the accused searching his pockets. If the accused had ransacked the
complainant’s pockets and the complainant felt this and testified about it, it
appears that would have proved the case of robbery according to the learned
magistrate. I have difficulty with that trend of reasoning because it is possible that
 10

a person may assault another with the intent of causing that other to submit to
the taking of property. If that property falls during or immediately after the assault,
one cannot acquit the accused of robbery only for the reason that the property
fell out and was not fished out as it were from the deep recesses of the
complainant’s clothes or person. This is particularly so if, as in this case, the
accused took the phone and never handed it to the police on arrival at the police
station. A body search had to be conducted on his person for the phone to be
found and handed over to the complainant.

27. The learned author Hunt3 states that in cases of robbery, it suffices if there is
proof that the assault and the theft formed part of a continuous transaction and
that the assault was the means or vehicle by which the unlawful possession of
the property was obtained. In the instant case, the evidence indubitably shows
that the accused confronted the complainant in a bush, chased and beat him as
a result of which the complainant’s phone fell and the accused took it and went
away. The complainant was left seriously injured and unable to walk. In my view,
the assault and the taking of the mobile telephone were part of one continuous
transaction, which to my mind suggests that the court a quo was not correct in
finding that a case of robbery had not been ineluctably proved.

28. Another issue which exercised my mind considerably was whether the learned
magistrate was correct in the finding that there was no case of robbery but that
two separate offences of assault with intent to cause grievous bodily harm and
theft both of which were competent verdicts to robbery, were condign. My sense
of disquiet arose from the fact that the accused was charged with one offence but
was ultimately convicted of two separate and distinct offences. This appears, on
first principles, to yield injustice on an accused person, who at worst, should, all
things being equal, expect to be convicted of only one count.

3
Ibid at page 682
 11

29. During my research however, I laid my hands on the cases of S v Jabulani4 and
S v Matjeke5 quoted in Hunt6, which suggest that the provisions of section 260 of
the Criminal Procedure Act7 provide that where in a case of robbery the offence
of assault with intent to do grievous bodily harm or common assault and the
offence of theft are proved, the accused can be convicted of both offences. I
unfortunately do not have to consider this issue any further in the light of the
conclusion to which I have arrived, namely that the learned magistrate erred in
finding that a case of robbery had not been proved ineluctably by the prosecution
in the instant matter. It may well be that the learned magistrate may have been
on the correct side of the law had the facts been different.

30. The one issue of procedure that I am in duty bound to mention in this case, in the
light of how the matter developed is that the court a quo resorted in two instances
to competent verdicts. There is no evidence in the instant case that the court, at
the commencement of the hearing, ever explained to the accused,
unrepresented and unlettered in law as he was, about the implications of
competent verdicts, which in this case proved unusually ubiquitous.

31. The learned authors Du Toit et al Commentary on the Criminal Procedure Act ,8
state general rules and principles applicable to competent verdicts, which were
ultimately returned in the instant case. The said authors say the following in part
in relation to this aspect:

‘(b) It is extremely desirable that an undefended accused should be informed

timeously of the competent verdicts which may be returned against him,
especially where these verdicts relate to offences which place an onus on an
accused. . .

4
1980 (1) SA 331 (NPD).
5
1980 (4) SA 267 (BH) at 270.
6
Ibid at page 688.
7
Act 51 of 1977.
8
At 26.1.
 12

(c) It is not necessary that competent verdicts should be formally mentioned in the
indictment. But the explanation given to an unrepresented accused, must be
given in detail and carefully by the magistrate. In S v Kester 1996 (1) SACR
461 (B) at 469 i it was suggested that the competent verdicts must be
explained to the accused before he pleads, as the accused will in this way
‘know the case he has to meet in its entirety.’
The latter requirement, in particular, appears to me to resonate with the
provisions of the Constitution of Namibia, at Article 12 (1) (a), which requires that
persons charged with a criminal offence are entitled to ‘a fair and public hearing
by an independent, impartial and competent court established by law. . .’ The
need to inform an accused with sufficient particularity of the case he has to meet,
including any competent verdicts applicable, preferably at plea stage, is in my
view consistent with the element of fairness of criminal proceedings enshrined in
the above article.

32. Although the above comments may not be relevant to the present case in view of
the findings made and the order that follows, it remains to be stressed that the
explanation of competent verdicts to unrepresented accused persons is very
critical and, as pointed out above, magistrates should take especial care to
explain competent verdicts and ensure that accused persons understand fully the
case they have to meet from the commencement of the proceedings. They
should not be left licking wounds inflicted on them by convictions relating to
charges they may understandably claim they never pleaded to at the
commencement of the proceedings.

33. In summation, I am of the considered view that the trial court erred in finding and
holding on the evidence adduced that the crime of robbery was not proved. The
contrary, as I have endeavoured to show, is true. The verdicts returned cannot
therefore be allowed to stand. In consequence, I issue the following order:

34 The conviction of the accused person of the offences of assault with intent to
cause grievous bodily harm and theft are hereby set aside.
 13

34.1 The sentences imposed on the accused person in relation to the

abovementioned offences are hereby quashed.

34.2 The convictions mentioned in 34. 1 above are replaced with the following
verdict, ‘The accused is found guilty of robbery as charged.

34.3 The matter is hereby remitted to the trial magistrate to impose afresh an
appropriate sentence on the accused, in line with the verdict mentioned in
34.4 above.

34.4 To this end, the accused shall be informed of the date on which the
sentence should be imposed and shall be presented before court for him
to participate in that proceeding.

____________

TS Masuku, AJ

I agree

____________

N.N. Shivute, J
14