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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION

HELD AT OSHAKATI

JUDGMENT

Case no: CC 15/2012

DATE: 14 MARCH 2014

NOT REPORTABLE

In the matter between:

THE STATE

And

LIMBO GEOFFREY CHUNGA

Neutral citation: S v Chunga (CC 15/2012) [2014] NAHCNLD 18 (19 March 2014)

Coram: LIEBENBERG J

Heard: 03 – 06 March 2014

Delivered: 14 March 2014

Flynote: Evidence – Of identification – Reliability of witnesses’ observation – Test in S v Mthetwa applied.

Evidence – Of identification – Dock identification – Where witness identifies accused in dock it forms part of evidential material upon which case must be decided – Weight to be afforded to dock identification to be decided in circumstances of the case.

Evidence – Alibi defence – Onus on the State to rebut an alibi defence.

Summary: The one complainant had seen the accused once on a previous occasion while to the other complainant he was a complete stranger. They were approached on the street under cover of darkness by a person wearing a cap, partly covering his face. He inflicted an open wound to the chest of one complainant with a knife. They were directed to a secluded area where he had sexual intercourse twice with the other complainant. Despite having seen his face during different stages the complainants were unable to identify the person. At some point the cap came off and his face became visible. One complainant recognised the accused. During subsequent events after they parted ways with the assailant one complainant described the dress (black trousers and jacket and a cap) of the person, from which a friend who had come to their assistance claimed it was the accused whom he had earlier seen at a club. The complainant who had recognised the accused kept quiet or denied knowing the person when specifically asked about his identity. Her reasons for doing so found unconvincing. Evidence shows she was still in doubt long after she identified the person. Several factors impacted adversely on the quality of the identification evidence. Dock identification of the accused by one complainant, though admissible, afforded little weight in circumstances of the case. Accused raised an alibi defence. Onus is on the State to adduced evidence refuting the alibi. Evidence of State witnesses doubtful and not reliable and the accused’s version reasonably possibly true.

ORDER

The accused is found not guilty on counts 1, 2, 3 and 4.

JUDGMENT

LIEBENBERG J:

[1] The accused, an adult male, stands charged on four counts, namely: attempted murder (count 1); two counts of rape in contravention of the Combating of Rape Act, 8 of 2000 (counts 2 and 3); and robbery with aggravating circumstances (count 4). He pleaded not guilty on all counts and raised an alibi defence.

[2] Mr Bondai appears on behalf of the accused while Mr Shileka represents the State.

[3] Besides the identity of the perpetrator being in dispute, the facts of the case are straight forward and uncomplicated, amounting to the following: The complainants are adult females who left the club at around 02h00 on the morning of 20 March 2010. I pause here to remark that the complainants contradict one another as to which club they visited that night, one saying that it was Club Africa while the other says it was Club Ground Zero, both clubs situated in Katima Mulio. On their way home they were approached from behind by a man, at that stage unidentifiable because of poor visibility on the street where they met. This person demanded money from them and as they had none he then stabbed ST (M….) with a knife on her chest causing an open wound from which she bled. On his demand they handed over their mobile phones. He then ordered them to walk along the road for some distance until they diverted onto a footpath between two residential areas. On the way and while passing a bushy area he told them to stop and undress. Complainants removed their trousers whereafter he told M… to sit down while SM (I…..) also had to take off her panties. I….. was told to take up a stooping position with her hands touching the ground and whilst in that position the person from behind had sexual intercourse with her. Once done he came to where M… was with the intention of having sexual intercourse with her, however, upon seeing that she bled from the wound, he changed his mind and told I…. to return to her former position whereafter he had sexual intercourse with her for a second time. While going towards M…. the cap he had been wearing came off and according to the complainants they were then able to see his uncovered face. The second incident of sexual intercourse happened in full view of M…. who was still seated about two metres from where they were, facing one another.

[4] It is common cause that up to the stage before the person had dropped his cap, neither of the two girls had been able to identify their assailant. This, according to them, was because it was dark where they had met on the road and according to M…. she was afraid to look at the person’s face on the way, fearing that he might do her further harm. Both of them said that during the time of the sexual intercourse the clouds had opened up (it had been raining earlier in the evening) and they were able to see his face in the moonlight.

[5] I pause here to remark that M…. said when they first met this person on the road she looked at him and that he was a complete stranger to her as it was her first time to see him. This seems to imply that she was able to see the person’s face from which she concluded that she had not seen him before. It would be contradictory to her evidence that she was unable to identify the person because of darkness. When asked in cross-examination about the first time she had seen the person’s face, M…. said this was while he was having sexual intercourse with I…. for the second time. Again this is inconsistent with her evidence in chief.

[6] Both complainants said the person was dressed in black trousers and a black jacket, also wearing a checkered golf cap. I….. said after the cap fell from his head she saw his ‘table cut’ hairstyle and realised that it was the accused, whom she came to know since an incident at the club the previous week and that he goes by the name C….. As for M…, although she did not know the person by name, she said she would be able to identify him facially, and that it was the accused. I shall deal with evidence of dock identification below.

[7] Before the complainants were allowed to get dressed and leave, M….had to part with her shoes and necklace she was wearing. On their way they met with an unknown man who assisted in getting M… who, in the meantime had become weak, to the house of I…’s parents. There they were met by the security guard who immediately set off to make a report to the police. Complainants then decided to proceed on their own to the house of I….’s boyfriend and whilst on their way they met with one M… S…. and R…. S….. (N….), all known to one another.

[8] After explaining what had earlier happened S…. asked whether complainants knew who did this to them. It is common cause that I…. did not disclose the identity of the person or the name C….. at that stage and it was M…. who gave a description of the clothes the person had been wearing ie black trousers, a black coat and checkered golf cap. S…. then responded by saying that he had seen this person earlier that night at Ground Zero Club and that it was C….. They then assisted complainants after stopping a passing ambulance to be taken to hospital.

[9] At the hospital M…. was examined by Dr Simbi. During his testimony he described her injury as a cut wound through the skin (not a stab wound) on the lower sternum which was still bleeding. It was sutured and does not appear that the wound itself was of serious nature. He however said the patient’s blood pressure was low and without treatment the wound would have continued bleeding and in his opinion, could have become life threatening due to blood loss. Contrary to the complainant’s evidence that she was unable to recall what had happened with her at the hospital until the stage of her discharge some time later, Dr Simbi testified that he communicated with the patient and that she had explained to him that an unknown man had stabbed her and raped her cousin twice; also that she had consumed alcohol. In the doctor’s opinion she did not appear drunk at the time of the examination.

[10] As for I…, she was interviewed by A…. N…., a registered nurse, who said she enquired from the patient what had happened to her. I…. explained that she had been raped at around 02h00 that morning and when asked whether she knew the person she said ‘No, I don’t know him’. When asked for a second time her reply remained that she did not know the person. This evidence is confirmed by medical records handed into evidence (Exhibit “D”). I…. was thereafter examined by Dr Simbi and his findings were that no injuries were observed on the body, there was no tearing, bruising or bleeding of the vagina and that the hymen was attenuated (long, narrow and sometimes tapering – Encarta Dictionary).The medical report further reads that it was difficult to ascertain whether or not the attenuated hymen was from previous sexual encounters as no other fresh wounds were noted. Also, that the patient had been sexually active prior to the incident.

[11] From the above it is clear that the medical evidence per se, as far as it concerns I…., does not prove any sexual act committed with her. It must however be said that the absence of injuries in this case does not nullify the complainants’ evidence that sexual acts were committed with I…... In view of M….’s injury and the evidence of both complainants about the rapes committed with I…., there is no reason to doubt their evidence in this regard. I accordingly find that I…. had been raped twice on that occasion. Whether the assault on M….. was with the intent to kill is doubtful and in the light of the conclusion reached in the end, there is no need to decide the intent the person had when inflicting the injury. I accordingly decline to do so.

[12] Charges were laid with the police and Constable Samoka from the Scene of Crime Unit was called upon to compile the photo plan handed into evidence from scenes pointed out to him by M…. two years after the incident (14.12.2012). From the date appearing on the photo plan it was only finalised on 16 May 2013, one year after the pointing out was made. It is common cause that at no stage during the investigation were the complainants required to identify their assailant during an identification parade. Despite the accused having been arrested shortly after the commission of the offences (the following day), his residence was never searched with the view of finding any of the items taken from the complainants. This oversight on the part of the police, in my view, constitutes a serious dereliction of duty, for had any of the items been found in his possession he would have been directly linked to the incident which took place the previous night. Another shortcoming in the State’s case seems to be the investigating officer’s failure to obtain statements from fellow residents living in the same house than the accused. In the light of the accused’s evidence that he from the outset had raised an alibi defence claiming to have stayed home on the night in question, independent evidence, showing otherwise, was likely to refute the alibi defence.

[13] Mr Shileka argued that the accused elected to remain silent when his warning statement was obtained and, although it was his constitutional right to do so, he was at some point expected to clarify his whereabouts when the alleged offence was committed. It is established law that the onus of proof lies with the State and that the accused is under no duty to assist the State in proving its case. As for the time of disclosing an alibi, this may become an issue and could adversely affect the value to be afforded to the alibi, however, this depends on the circumstances of each case. The accused’s evidence is that at the time of his arrest he told the police that he had been at home at the relevant time and nothing was done to disprove his claim. In these circumstances I fail to see why his decision not to give a statement when formally charged should adversely affect the weight to be afforded to his alibi defence and I decline to do so.

[14] Regarding the witness S…., his evidence is that he was approached a few days after the incident, however, from the witness statement handed into evidence it is clear that the statement was recorded on 26 April 2011, more than one year after the complaint was made. He went on to say that the police came back to him in order to ask him what had happened. One would have expected that any evidence that could possibly prove the State’s case against the accused would already have been obtained from the witness during the police’s first interview, and not one year later.

[15] The lack of dedication displayed by the police during the investigation of this case was likely to contribute to the matter only being tried after four years, which, in my view, amounts to a travesty of justice; more so, in circumstances where the accused remained incarcerated since his arrest for a period of four years.

Identification

[16] An incident which took place at Club Ground Zero earlier that month stands central to I….’s evidence on identification of the accused as their assailant that night. She narrated to court a fight she had witnessed between a certain Anna and a man whom she then heard was called C….. Upon leaving the club he took off his cap and she saw his hair was cut in the style referred to as ‘table cut’. The cap, she said, was the same golf cap he wore when he raped her. When asked in cross-examination to describe his clothes during the fight with Anna, she replied that it was his cap ‘as usual’ and the jacket. When asked to explain why she said he usually wore the cap – bearing in mind that it was her first time to know who he was – she maintained it was the same cap he was wearing the night he had raped her. She was unable to recall what clothes he had been wearing during the fight, though.

[17] What seems clear from I…’s evidence is that the table cut hairstyle and golf cap played a significant role in her identification of the person claimed to have been the accused, in that these were the only ‘identifying features’ she could remember from the first incident. Her evidence about the cap, however, is contradicted by another State witness.

[18] Despite the accused’s denial of him having been involved in an incident in March 2010 when he fought with a certain Anna at Club Ground Zero, the State led the evidence of O M, also known as A…, as corroboration of I’s evidence in that respect. Anna confirmed the incident and said that, although the person she fought was unknown to her, she came to know his name when leaving the club and people referred to him as C…. That person, she said, is the accused. She also confirmed the table cut hairstyle at the time and that he had been wearing a hat during the incident. However, there is a material difference between her evidence and that of I… regarding the type of hat the accused wore as, according to A…, it was not a golf cap but a floppy hat. If Anna’s evidence on this score were to be accepted as the truth, then it would adversely impact on the credibility of I…., as she relied on her recollection of the accused having worn the same checkered cap, not a floppy hat, on both occasions.

[19] The witness Anna gave a detailed account of what happened between her and the accused leading up to the fight. It happened inside the club where visibility was good and as she stood close and directly opposite him, there was nothing obstructing her view or which might have impeded her observation of the person in any way. Corroboration is further to be found in the evidence of I…. on this score and I am convinced beyond reasonable doubt that the person so identified was indeed the accused. I therefore reject his evidence as false as far as it concerns his denial of having fought A…. Similarly I shall accept the evidence of I…. that she had previously seen the accused once and distinctly remembered his hairstyle. As for the cap, for reasons to follow, I prefer the evidence of A… over that of I….

[20] It would appear that, unlike M…. who said she was unable to identify the person who had approached them on the street in darkness, I…. was able to see the person’s face. While walking on the street she saw his face but did not recognise him because of fear. She further said that even after his cap fell off she was not sure about the person’s identity, though she ‘knew him’. Somewhat contradicting on this point she also said that she recognised him as he even had the same table cut hairstyle when fighting A…. In cross-examination, pertaining to the rape incident, the witness contradicted herself as to the stage she identified this person and gave different accounts about the time the cap fell from his head. However, on her own evidence she, at some point and while he was still with them, identified the person on his face and realised that it was C…., the accused. It is not clear why she only identified him then and not on any of the previous occasions when she saw his face – except for the reason advanced that it was out of fear. At the time of identification she had been raped and likely to have been more fearful than the time they were still on the way and before she was done any harm.

[21] Notwithstanding her having identified her assailant, she failed to disclose his identity and mention the name of the person to anyone that night, surprisingly, not even to M… while on their way in search of help. She explained the omission on her part saying that she was so occupied with M…. that there was no time to inform her. There were several other opportunities thereafter when she could equally have disclosed the accused’s name but failed to do so. The first was when they had reached her parents’ home and the security guard offered his assistance, and again when they met with S… and N… while on their way to her boyfriend’s place. On this occasion they were specifically asked about the identity of the person, upon which only M…. responded by giving a description of the clothes the person had been wearing. Again I…. kept quiet. As to why she on this occasion failed to disclose the identity of the person, she explained that this was deliberate because she feared that the accused would come back and kill her for having mentioned his name. On the last occasion at the hospital she was again asked twice by the nurse whether she knew the person who had raped her and every time said she did not. I…. confirmed this evidence and explained that she did not see the reason why the nurse (and the doctor for that matter) had to know the identity of the person as she was not a police officer. On a follow-up question that information was deliberately withheld from the nurse, I… replied that she was still in fear. According to complainant she wanted to inform a police officer of the identity of the person and nobody else, out of fear for the accused.

[22] While there can be little doubt that both complainants had reason to be terrified and fearful from what they had experienced, there is however nothing in their evidence justifying I…..’s fear that the attacker would come back for them. This fear seems to be unfounded as nothing to that effect was mentioned when he told them to get dressed and leave. S… and N…. were known to them and she had no reason to suspect they would report her to the accused. On the contrary, it was M…. who gave a description of the person from which S….. was able to come up with the name C…... To me this does not create the impression that M…. was in any fear of her attacker coming after them after the incident, and why would he? Was I…..’s behaviour in the circumstances reasonable and justifiable, or could there possibly have been different reasons for such behaviour?; behaviour I would describe as uncharacteristic in the circumstances.

[23] Despite I….’s evidence that already when the accused was still with them she had positively identified him, she said that when the name ‘C…’ was mentioned (by S….), it clicked in her mind that it was C…. When asked in cross-examination to explain what she had meant by that she said she became one hundred percent sure that it was him. This means she had not been sure prior thereto, despite having testified to the contrary and that she had identified him. Earlier she said that she looked him in the face and, together with the cap and hairstyle, she recognised the accused. Had that indeed been the case, why did she only become sure of the person’s identity after the name C….. was mentioned?

[24] The upshot of her evidence is that she, until then, was in doubt as to the identity of this person, despite claiming to have positively identified him at an earlier stage. Could it be that the identification was solely made on the cap and the table cut hairstyle of the attacker and not on the person’s facial features? When asked in cross-examination what made the witness realise the accused was her attacker, she answered that it was the face and haircut. She described the facial features as a ‘long chin’ and ‘without a beard’. This description is so general that it could fit a large number of persons and in the absence of corroborating evidence, should not readily be relied upon being distinctive features.

[25] M…..’s identification evidence does not, in my view, serve as corroboration for I….’s evidence and vice versa. She had seen their attacker for the first time that night and was unable to identify him – despite claiming that she had a proper look at him during the second rape incident. At best she later on only gave a description of the clothes he was wearing without making any reference of facial features. She was never required to attend an identification parade and according to her, all she was asked by the police is whether she had seen C….. This notwithstanding, she testified that the accused was the perpetrator as she had seen his face and was able to still remember it.

[26] Pertaining to identification evidence it will suffice to quote from the learned authors Zeffert and Paizes: The South African Law of Evidence (2nd ed) at 152 -153 where it is said:

‘It is generally recognised that evidence of identification based upon a witness’s recollections of a person’s appearance is dangerously unreliable unless approached with due caution¹ . The Appellate Division in S v Mthetwa² laid down:

“Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest. The reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused’s face, voice, build, gait and dress; the result of identification parades, if any; and of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence, and the probabilities.” (At 768, per Holmes JA)

The average witness’s ability to recognise faces is poor, although few people are prepared to admit that they have made a mistake. …. And it follows that “a witness’s honesty and own conviction as to the correctness of his or her identification can never be allowed to take the place of an independent enquiry into the reliability of the identification itself.³ ” ’ (Emphasis provided)

[27] I earlier alluded to M…’s evidence not serving as corroboration for I….’s identification of the accused, despite M… claiming that the accused was indeed the perpetrator. Her identification of the accused is clearly based on (a) the name C…. mentioned by S….; (b) the police enquiring whether she had seen C…..; and (c) having seen the accused in court, the latter referred to as dock identification. It is common cause that M… had not seen her attacker at any stage after the incident as no identification parade was held. The first opportunity to do so was four years later in court. It is well known that memory fades with time.

Dock identification

[28] Though dock identification is admissible evidence, the weight which is to be afforded thereto will vary depending on all the circumstances of the case. Notwithstanding the dangers attendant thereon, evidence on dock identification cannot simply be ignored and in each case the judicial officer must decide upon what weight, if any, is to be afforded to the dock identification. The court in S v Matwa 2002 (2) SACR 350 (ECD) said the following at 357b-c:

‘The judicial officer must therefore scrutinise evidence of identification closely in order to be satisfied that the witness in fact has a recollection of the person concerned which goes beyond a mere impression (S v Maradu (supra at 412e)). In doing so, the objective circumstances attending the observation of the person and the state of mind of the observer are critical (Ndika's case supra).’ (Emphasis provided)

[29] The description M…. gave to S… included no bodily features other than the person being of medium height. No mention was made of his hairstyle, which some witnesses relied on as an identifying feature (I…. and A….). She only described the person’s dress and cap and on that S… identified the person being the accused, who ever since became the only suspect, not because he was identified by the complainants. As pointed out above, the objective circumstances attending the observation and the state of mind of the observer are critical. In this case both complainants gave the reason why they were unable to identify the person in circumstances where they were able to see his face ie because they were in fear. Circumstances thereafter worsened which, in all probability, made them more fearful. It would appear to me that in the present circumstances there is a real possibility that these factors adversely impacted on the quality of the identification evidence. Consequently, as far as it concerns M…., very little weight (if any) should be afforded to her evidence on identification.

The consumption of alcohol by the witnesses

[30] It is common cause that both complainants, as well as S…., had consumed liquor until such time that the clubs closed at 02h00 that morning and although I…. shrug off the possibility of her having been intoxicated – she drank seven bottles of beer (‘dumpies’) from 22h00 that night – this is not a factor that should be overlooked and afforded no consideration; despite the witnesses’ evidence that they were not drunk. S….. explained that he is unable to tell whether he was interviewed by the police the following day as he was then still suffering from a hangover. And when the police eventually returned more than a year later to enquire from him what had happened on the night in question, he gave a statement but left out important information ie that from a description of the perpetrator he was able to identity the accused whom he had earlier seen in the club that night. His explanation of having been under stress and therefore omitted such crucial evidence from his witness statement, is unconvincing. I pause here to remark that it is accepted that S…., from M….’s description, concluded that it had to be Chunga. This much was confirmed by the defence witness N…. For the foregoing reasons it would seem to me that there are indications that the witnesses, particularly S…., were more intoxicated than what they were willing to admit. That would be another reason why their evidence should be treated with caution.

The alibi defence

[31] It is established law that the accused does not bear the burden of proof when raising an alibi defence. When faced with an alibi defence the court is required to assess the alibi in the same way as any other defence and must decide whether it is reasonably possibly true or whether it should be rejected as false beyond reasonable doubt. See R v Biya 1952 (4) SA 514 (A) at 521D-E; R v Hlongwane 1959 (3) SA 337 (A). In the present case the accused claims to have raised an alibi defence from the outset and, as mentioned earlier, nothing was done to gather information or evidence proving otherwise. The only evidence that could possibly refute the accused’s alibi defence is that of the complainants and Simataa.

[32] According to S…. he had seen the accused in passing while he (S….) was with his girlfriend at Club Ground Zero that evening. It must be accepted that he had known the accused from before. In cross-examination he said they did not greet as his attention was with his girlfriend and not the accused. He confirmed that it was over a weekend and that there were many patrons in the bar. When asked what in these circumstances drew his attention to the accused for him afterwards still remembering his dress, he said it was just like it had been described to him and that there was no one else dressed like that. As mentioned, the description was of a black person of medium height wearing black trousers and jacket with a checkered hat. With deference to the witness S…., it seems highly unlikely that there would have been only one person among many dressed in black trousers and a jacket. Though the checkered cap might have been something different than the ordinary, there is nothing unique about it.

[33] Is the witness S…. a credible witness and is his identification evidence of the accused reliable? Firstly, he gave single evidence as regards the identification of the accused and did not particularly strike me as an honest witness as he became evasive about the reasons why he left out the most important aspect of his evidence ie the identification of the person described to him by M….. His explanation for omitting to mention this to the police is that he forgot and then blamed it on him having had a hangover when interviewed by the police. As reasoned above, his consumption of liquor might have played a role and whether or not it impaired his faculties and memory remains an open question. His inability the following morning to give a proper account of the previous evening’s events to the police should be some indicator that he was under the influence when making the observation on the accused as claimed.

[34] Surprisingly, neither he nor I….. made any mention about having seen one another at Club Ground Zero that night as both testified that they had been at the same club for several hours (while M… said they were at Club Africa). Neither did I… make mention about the accused, who was known to her, having been present at the club.

[35] For the aforementioned reasons it seems to me that there should be doubt as to whether S…. had positively identified the accused inside Club Ground Zero on the night in question and the possibility cannot be excluded that he mistakenly identified the accused. Even if S….’s evidence about him having seen the accused in the club that night were to be accepted – which is not the case – then it still does not put the accused on the scene of the crime. To come to that conclusion the court must further accept the evidence of one or both complainants, which falls far short from constituting proof beyond reasonable doubt.

[36] In the circumstances the accused’s alibi defence is reasonably possibly true that he was at home at the time the crimes were committed. It then follows that the State witnesses are wrong in their belief that they had seen the accused that night as both versions cannot be correct. This is consistent with what the court, as per Greenberg JA, in R v Biya (supra) at 521C-D said:

‘If there is evidence of an accused person's presence at a place and at a time which makes it impossible for him to have committed the crime charged, then if on all the evidence there is a reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime.’

[37] The accused’s evidence is that he was at home on the night in question and in the absence of reliable evidence proving otherwise, there is no legal basis on which his version should be rejected as false beyond reasonable doubt – even where the court has rejected his evidence pertaining to an unrelated incident.

Conclusion

[38] In view of what has been stated above, I have come to the conclusion that the identity of the perpetrator had not been duly established through the evidence of either of the complainants and their evidence in that regard is doubtful and therefore unreliable. I am not persuaded that I… out of fear decided to remain silent about her assailant’s identity, or that it was of no concern to the nurse and doctor. The reason rather seems to be that she remained in doubt as to the identity of the person and therefore kept quiet.

[39] Consequently, though mindful of the complainants having corroborated one another in material respects of their evidence, as well as their honesty and convictions as to the correctness of their identification and, having followed a cautious approach in the assessment of their evidence, regard being had to the circumstances and factors impacting on the quality of the identification evidence, I am not convinced beyond reasonable doubt that the accused was positively identified by either of the complainants as the perpetrator.

[40] In the result, the court finds the accused not guilty on counts 1, 2, 3 and 4.

JC LIEBENBERG

JUDGE

APPEARANCES

STATE R Shileka

Of the Office of the Prosecutor-General, Oshakati.

ACCUSED G F Bondai

Instructed by the Directorate Legal Aid, Windhoek.

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