NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION

HELD AT OSHAKATI

SECTION 174 APPLICATION REASONS

Case No.: CC 13/2016

In the matter between:

MATEUS SAKEUS APPLICANT

THE STATE RESPONDENT

Neutral citation: Sakeus v S (CC 13/2016) [2019] NAHCNLD 122 (25 October 2019)

Coram: JANUARY J
Heard: 15 August 2019
Delivered: 27 September 2019
Released: 25 October 2019

Flynote: Criminal Procedure – Criminal Procedure Act section 174 application – Murder
– Criminal Procedure – Trial – Discharge of accused in terms of s 174 Act 51 of 1977–
Test to be applied – Test not whether prima facie case against accused – Is there
evidence upon which a reasonable court may convict.
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Headnote: Where the court is faced with an application for the discharge of accused
persons at the close of the state case, in terms of s 174 of the Criminal Procedure Act
51 of 1977, the test is whether there is evidence upon which a reasonable court may
convict the accused.

In the present case, the court followed the principles laid down in S v Nakale and
Others 2006 (1) NR 455 (HC).

ORDER
______________________________________________________________________
The application for a discharge in terms of section 174 of the CPA is dismissed.

______________________________________________________________________
REASONS
______________________________________________________________________
JANUARY J

Introduction

[1] The accused in this case is indicted for murder read with the provisions of the
Combating of Domestic Violence Act, Act 4 of 2003. He pleaded not guilty to murder.
This is an application for discharge on the charge of murder in terms of section 174 of
the Criminal Procedure Act, Act 51 of 1977 (the CPA) after the State closed its case. I
refused the application on 27 September 2019 and indicated that reasons will follow.
These are the reasons.

[2] The accused was at commencement of the trial represented by Mr Nsundano

who in the meantime resigned from the Directorate of Legal Aid. Mr Grusshaber took
over from Mr Nsundano and is now representing the accused. Ms Amupolo was
representing the State. She also in the meantime resigned and Mr Pienaar represents
the State.

[3] The defence submitted that the State did not prove the chain of custody of the
body of the deceased. In the absence thereof, the State did not prove murder read with
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the provisions of the Combating of the Domestic violence Act. It was further submitted
that as a result there is no evidence upon which a reasonable court acting carefully
might convict and the accused should be discharged.

The law

[4] Section 174 of the CPA provides as follows:

'174 Accused may be discharged at close of case for prosecution

If, at the close of the case for the prosecution at any trial, the Court is of the opinion that
there is no evidence that the accused committed the offence referred to in the charge or
any offence of which he may be convicted on the charge, it may return a verdict of not
guilty.'

In Du Toit et al Commentary on the Criminal Procedure Act at 22 - 32F.) The authors

summarised it as follows:

'The words ''no evidence'' in the section have been interpreted to mean no evidence
upon which a reasonable man acting carefully may convict….’ This interpretation was
also accepted and followed in this Court. Cf S v Campbell and Others 1990 NR
310 (HC) (1991 (1) SACR 435 (Nm)) and S v Rittmann 1994 NR 384 (HC) (1992
(2) SACR 110 (Nm)). Consequently, the accepted approach by a court at this
stage is to consider whether there is no evidence upon which a reasonable man
(court), acting carefully, may convict.1

The State’s evidence in relation to the chain of custody

[5] At the commencement of the trial after the plea and plea explanation the
following admissions amongst others were made in terms of section 220 of the CPA: (a)
The identity of the deceased; (b) the cause of death save for the doctor to clarify certain
issues.

[6] The pre-trial review conference minutes and the reply to the State’s pre-trial
memorandum reveal that the following documents are not disputed: Section 212(4)

1
S v Nakale & others 2006 (2) NR 455 at 457
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affidavits in terms of the CPA: by Dr Osmany Lopez Garcia stating that the body was
identified to him by W/O Nawases as Analise Tuunane Ndakongele; The post-mortem
report PM 108/2015; by W/O Beverly Nawases that she received the body from Sgt
Shipuata and identified the body to Dr Osmany mentioned above; The identification of
the body to Sgt Ithete By Selma Kanyemba;

[7] Inspector Sox Samuel Ambundu was one of the police officers who attended the
scene of crime. The body was identified to him. He transported the body to Okahao
police mortuary and identified it to W/O Shipuata. He entered the identity in the
Occurrence Book and registered it in a death register. Copies of the occurrence book
and death register were handed up as exhibits. The relevant entries reflect that the body
of Analise Tuunane Ndakongele with PM 47/2015, a number in sequence of bodies
received at the particular mortuary, was admitted in the police mortuary at 11h45. The
body did not sustain further injuries.

[8] W/O Ruben Kaunda Shipuata is a pathologist technician helping doctors to do

post-mortem examinations. He transported the body of the deceased from Okahao to
Oshakati police mortuary and handed it to W/O Nawases.

[9] Beverly Nawases is a police officer in the forensic pathologist subdivision in

Oshakati. She received the body of the deceased from officer Shipuata and labelled it
with PM number 108/2015 to differentiate it from other bodies.

[10] Dr Osmani Philipus Garzia is the pathologist who conducted the post-mortem
examination on PM 108/2015. He filed an affidavit in terms of section 212(4) of the CPA
stating that he received the body from W/O Beverly Nawases.

The 174 application

[11] Mr Grusshaber submitted that Ithete mentioned in paragraph 6 above did not
testify and neither did he make an affidavit in terms of section 212(4) of the CPA. He
further submitted with reference to case law that a link in the chain of custody is missing
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and where persons who received a body do not testify the information in an affidavit
would constitute hearsay evidence.2

[12] In Goagoseb v S (supra), the case that Mr Grusshaber referred to, the court also
stated the following: ‘The identity of the deceased is one of the allegations the State must, as
a matter of course, prove and counsel can only submit, with conviction, that the identity of the
deceased was that of Louis Shamandje, where a formal admission in terms of s. 220 had been
recorded regarding the identity of the deceased.’ The identity of the deceased in this matter
was recorded in terms of section 220 of the CPA distinguishing it from the Goagoseb
case. In addition, neither the identity of the deceased nor the chain of custody were ever
put in issue.

[13] There is in my view a relation between admitting the cause of death and the
identity of a particular deceased. In other words, an admission to the cause of death
must relate to the death of a particular person. In my considered view, the State proved
the identification of the body and chain of custody.

[14] In the result:

I dismissed the application for a discharge in terms of section 174 of the CPA.

________________

H C JANUARY
JUDGE

APPEARANCES:

2
Goagoseb v S (CA 63/2014) [2014] NAHCMD 9 (09 February 2015)
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For the Applicant: Mr P Grusshaber

Of Directorate of Legal Aid, Outapi

For the Respondent: Mr J Pienaar

Of Office of the Prosecutor – General, Oshakati