Munuma V S (CC 03-2004) 2018 NAHCMD 87 (10 April 2018)

1

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CC 03/2004

In the matter between:

PROGRESS KENYOKA MUNUMA1ST APPLICANT

SHINE SAMULANDELA SAMULANDELA2ND APPLICANT

MANUEL MANEPELO MAKENDANO3RD APPLCIANT

ALEX SINJABATA MUSHAKWA4TH APPLICANT

DIAMOND SAMUNZALA SALUFU5TH APPLICANT

FREDERICK ISAKA NTAMBILWA6TH APPLICANT

HOSTER SIMASIKU NTOMBO7TH APPLICANT

JOHN MAZILA TEMBWE8TH APPLICANT

v

THE STATERESPONDENT

Neutral citation:Munumav S(CC 03/2004) [2018] NAHCMD 87(10 April 2018)

Coram:UNENGU AJ

Heard:21-22 February 2018

Delivered:10 April 2018

Flynote:Criminal Procedure – Special plea in terms of s 106 (1) (f) and (h) of the Criminal Procedure Act 51 of 1977 – Accused raising ECZ not being part of Namibia and Prosecutor-General not having a title to prosecute them – Criminal Procedure – s 106 (1) not providing for an accused to plead twice to offences in same charge – Accused previously pleaded to same charges raising special plea of court not having jurisdiction to try the offences – Second plea outside the law, therefore, a nullity – Article 1 (4) of the Constitution – Allegation that ECZ not part of Namibia is a challenge to Article 1 (4) of the Namibian Constitution – Therefore, plea is incompetent, unconstitutional and a nullity – Law of evidence – Evidence – expert witness – MrYaNangolo not expert witness on boundaries of Namibia – Special plearejected by court.

Summary:Criminal Procedure – The accused whose first special plea in terms of s 106 (1)(f) of the Criminal Procedure Act 51 of 1977 was rejected by this court and the Supreme Court, are raising the same plea in the present proceedings. In addition to the challenge against the jurisdiction of the court to try the offences, the accused are also pleading in terms of s 106 (h) that the Prosecutor-General has no title to prosecute them. The ground for the second plea is that the ECZ does not form part of Namibia as defined in Article 1 (4) of the Constitution.

Held that the special plea was dealt with in the first proceedings by this court and the Supreme Court, therefore, the accused are barred by the principle ofresjudicatatoraise the same plea.

Heldfurther, that s 106 (1) of the Criminal Procedure Act 51 of 1977 does not provide for a second plea on the offences in the same charge; that the Act, unlike common law, cannot be developed by courts but it is for Parliament to amend it, therefore, the plea is outside the law and a nullity.

Held further, that the witness MrYaNangolo is not an expert witness with regardthe boundaries of Namibia.

Held furthermore, that the allegation by the accused that the ECZ does not form part of Namibia as defined in Article 1 (4) of the Constitution is a challenge against the Constitution and as such is incompetent, invalid and a nullity; and reject the special plea.

ORDER

1.The special plea in terms of s 106 (1)(f) and (h) of the Criminal Procedure Act 51 of 1977, is rejected;

2.This court has territorial jurisdiction to try the accused with the offences listed in the indictment; and

3.The Prosecutor-General has a title to prosecute accused 1, 2, 3, 4, 5, 6, 7 and 8 with the offences against them listed in the indictment.

JUDGMENT

(Special plea in terms of s 106 (1) (f) and (h)of the Criminal Procedure Act 51 of 1977 as amended – Jurisdiction)

UNENGU, AJ

[1]These proceedings are a repeat of the previous proceedings this court and the Supreme Court have already pronounced itself upon more than once. However, the accused are still persisting with the same issue to the extent that it has become boring to hear the same story time and time again even though, so it appears, that in the present proceedings the goal post has been shifted slightly from the original place – with regard the ground to the plea and the additional plea that the Prosecutor-General does not have a title to prosecute them.

[2]On 30 June 2014, after the charges preferred against them by the State were put to them, the accused pleaded that the court had no jurisdiction to trythe offences[1]and alleged that they were abducted in the Republic of Botswana and unlawfully brought into the jurisdiction of this court by the officials of the Namibian Police Force and or the Namibian Defence Force and or other agents of the Republic of Namibia in concert with and with the full knowledge of the officials of the government of the Republic of Botswana.

[3]However, I dismissed the special plea and found that this court has jurisdiction to try the offences the accused charged with.[2]

[4]Leave to appeal the judgment to the Supreme Court was refused[3] but were granted leave by the Honourable Chief Justice after he was petitioned.

[5]In the Supreme Court, the appeal by Mr Samuele, who was accused no. 7 in the proceedings before this court, was upheld and a permanent stay ofprosecution against him of the offences preferred against him in the indictment was ordered. His co-accused Progress KenyokaMunuma, Shine SamulandelaSamulandela, Manuel ManepeloMakendano, Alex SinjabataMushakwa, Diamond SamunzalaSalufu, HosterSimasikuNtombo and John MazilaTembwe were unlucky as their appeal against the judgment of this court was dismissed and remitted the case to this courtfor themto stand trial on the indictments brought against them.[4]

[6]On 6 September 2016 when the proceedings resumed before me, I was informed that Mr Tjombebriefed by the Directorate of Legal Aid in the Ministry of Justice to represent the accused in the trial was no longer wanted by the accusedand instead they preferred MsAgenbach to defend them.

[7]MsAgenbach then replaced Mr Tjombe but soon discovered during consultations that she could not represent accused nos.: 6 and 8 due to conflict of interest.In the result, Mr Neves was appointed to represent the two accused.

[8]On behalf of accused 1, 2, 3, 4, 5 and 7,MsAgenbach mounted another challenge against the jurisdiction of the court to try the offences and the title of the Prosecutor-General to prosecute[5] the accused. This,MsAgenbachdid even though the Supreme Court dismissed their appeal on jurisdiction and remitted the matter to this court for the accused to stand trial on the indictments brought again them.[6]

[9]In my view, the judgment of the Supreme Court dismissing the challenge against the jurisdiction of this court to trial the offences preferred again them in the indictment has been put to bed. The same plea cannot be raised again for the second time.

[10]In any event, s 106(2) of the Criminal Procedure Act does not allow two or more pleas to be tendered separately or one after the other has failed. It provides that two or more pleas may be pleaded together except that a plea of guilty may not be pleaded with any other plea to the same charge.

[11]Hiemstra’s Criminal Procedure[7] comments that when the court has rejected a plea against jurisdiction, the trial has to proceed and the point can be raised again by means of an appeal, which the accused have done. No repeat of a special plea in terms of s 106 (1) is allowed.

[12]That being the case, the proceedings in the instant matter are irregular. The plea, even though different grounds were raised, is outside the Criminal Procedure Act rendering it a nullity, and it is trite that from a nullity flows nothing.

[13]MsAgenbach in her submissions both in written heads of argument and oral tried very hard to justify the second special plea. A statutory provision as opposed to common law, court has no power to develop s 106 of the Criminal Procedure Act,nor to read something in the section which the section does not provide for.It is for Parliament to amend the section.The provisions of subsection (2) of s 106 are clear and leave no room for any doubt as to what it stipulates.Two or more pleas may be pleaded together not separately except the plea of guilty.

[14]Section 106 (1)(h) applies to the prosecutors’locus standi to prosecute in the case. In Ndluli vWilken NOenAndere[8] it was held that in a prosecution by the State “the prosecutor” in s 106(1)(h) does not refer to the State but to the person who act as prosecutor in court. Further, that the objection posed by such a plea is an objection to the right or power of the person acting as a prosecutor in the case. In the instant matter the objection should not have been directed against the Prosecutor-General of the Republic of Namibia but against the prosecutor,MrWamambo who conducted the prosecution on behalf of the State.As a consequence therefore and for reasons stated above, and in view of the fact that the special plea on jurisdiction of the court in terms of the s 106(1)(f) has already been adjudicated upon by this court and the Supreme Court, I come to the conclusion that there is nothing before this courtto rule on. It follows, therefore, that the alleged special plea against jurisdiction of this court to try the offences preferred against the accused in the indictment is spurious and must fail on this point alone. The accused will not be allowed to abuse the court process unabated. They had their opportunity in both this court and the Supreme Court. They are barred on the basis of res judicatarule to raise the same special plea again albeit on different grounds.

[15]There is still another hiccup in the patch of the accused with regard the challenge on the jurisdiction of this court on the ground that the Eastern Caprivi Zipfel (the ECZ) or Strip was never part of the former German South West Africa which became the Republic of Namibia on 21 March 1990.

[16]In her main heads of argument, MsAgenbach argues that the State failed to prove beyond a reasonable doubt that the ECZ forms part of the national territory of Namibia as defined in Article 1 (4) of the Namibian Constitution depriving this court from competent territorial jurisdiction and the Prosecutor-General of competent title.

[17]Article 1 (4) of the Constitution provides as follow:

‘The national territory of Namibia shall consist of the whole of the territory recognized by the international community through the organs of the United Nations as Namibia, including the off-shore islands of Namibia and its Southern boundary shall extend to the middle of the Orange River’.

[18]During the trial of the matter, exhibit “O” an officialmap No. 3228 of the United Nations dated March 1983 was received and admitted into the record of proceedings as evidence and forms part of record. This happened during the evidence of DrAkweenda who testified for the State. On this map (exhibit “O”), there is an inscription which reads:

‘On the basis of resolution 31/150 adopted by the General Assembly on 20 December 1976 and other resolutions of the General Assembly this map represents an official United Nations map of Namibia and supersedes any other map on Namibia or South West Africa hitherto published by South Africa’.

[19]It is public knowledge that the United Nations Organization is an international body which replaced the League of Nations the latter being the body which, after the first World War, gave the mandate to the Union of South Africa to administer Namibia then South West Africa on behalf of the British Government. It follows, therefore, that the United Nation’s official map (exhibit “O”) on Namibia (South West Africa) is a legal and recognized map of Namibia by the international community of the United Nations identifying the territory of Namibia including the enclave, harbor and port of Walvis Bay and the off-shore islands and the ECZ as provided for in Article 1 (4) of Namibia’s Constitution.

[20]Both counsel were invited by the court during submissions to address it on the implication of Article 1 (4) of the Constitution in regard the issue of the ECZ not being part of the Republic of Namibia and whether that allegation is not a challenge of the provisions of Article 1 (4) of the Constitution of Namibia therefore incompetent which this court cannot hear due to lack of locus standi in indicio.Both counsel did and gave different views. MsAgenbach argued that the allegation does not challenge Article 1 (4) of the Constitution, while her colleague argued that it does.The United Nations’ official map, exhibit ”O” includes the ECZ, the port of Walvis Bay and the off-shore islands as part of Namibia as is provided in Article 1 (4) of the Constitution.

[21]Article 1 (6) states that the Constitution shall be supreme law of Namibia, meanwhile Article 80 (2) calls upon this court to uphold the Constitution and the fundamental rights and freedoms guaranteed thereunder – barring it from hearing and adjudicating on any challenge against the Constitution.

[22]It is clear from what is stated abovethat the allegation of accused to allege in their plea that the territory or region called ECZ now known as Zambezi Region is not part of Namibia is unconstitutional, invalid and as such a nullity.

[23]I must also mention here that none of the legal practitioners representing the State and the accused referred the court to or produced any South West Africa/Namibia map without the ECZ. I have also not seen one in my life. That being so, on this point also the special plea is rejected on the basis of anullity due to the fact that it is a violation of Article 1 (4) of the Constitution of Namibian.

[24]I turn now to consider the merits of the special plea self in the event the two points discussed above do not successfully dispose of the special plea and also for purpose of completeness.

[25]As pointed out before, the eight accused in the matter are charged with crimes of high treason, sedition, public violence and offences of illegal possession of fire arms and ammunition, amongst others.The State alleges that during the period from September 1998 until December 2003, the accused were involved in attempts to overthrow the government of the Republic of Namibia in the former Caprivi Region and to secede it from the rest of Namibia.They did not succeed in the first challenge against the jurisdiction of this court to try the offences preferred against them. Not satisfied with the decision in thefirst challenge against the jurisdiction of this court to trythem, they have now raised another special plea in terms of the same s 106 (1)(f)and a second plea in terms of s 106(1)(h) that the Prosecutor-General does not have a title to prosecute them, pleading that the former ECZ (now Zambezi Region) did not form part of South West Africa (Namibia), therefore the Prosecutor-General does not have a title to prosecute the alleged offences committed outside the territorial jurisdiction of Namibia.

[26]As the State bears the onus to prove beyond reasonable doubt that this court has jurisdiction to try the accused where a special plea has been raised[9], the State then represented by MrWamambo called witnesses to prove jurisdiction of the court and the title of the Prosecutor-General to prosecute the accused. MsAgenbach moved the special plea on behalf of the accused including accused six and eight who are Mr Neves’ clients. To be specific they pleaded as follows:

‘Territory known and described as the Eastern Caprivi Zipfel demarcated as the portion of the Caprivi Zipfel which lies east of a line running through beacon 22 situated on the border between the mandated Territory and Angola, by Union of South Africa Proclamation 147 of 1939, does not fall within the international borders of the national territory of the Republic of Namibia as defined in article 1 (4) of the Namibian Constitution.’

[27]The State called Mr Charles Mlambo, Chief Librarian who testified that all the accused before court registered as voters for district 16 which was the ECZ during October 1989 to vote in the National General Elections contested by SWAPO, DTA, and other small political parties in Namibia. It is common cause and public knowledge that the people from the Zambezi Region, then ECZ,participated in the elections.

[28]It is further common cause and public knowledge that MrMishakeMuyongo from that area stood as the President of the DTA, one of the parties which took part in the elections. Had the DTA won the elections of 1989, most probablyMrMishakeMuyongo an extraction from the Zambezi Region would have been the first State President of the Republic of Namibia.

[29]MrMlambo’s evidence is based on public documents from the National Archives of Namibia of which he was the custodian thereof. No objection was raised to MrMlambo’s evidence by MsAgenbach.

[30]Mr Oscar MuhapiMuhapi, a Control Administrative Officer in the Ministry of Home Affairs and Immigration a native from the Zambezi Region was called next to testify. In his testimony MrMuhapi told the court that accused one to eight applied for Namibian citizenship and provided exhibits K1-K8 as proof of applications for Namibian citizenship in respect of accused one to eight respectively.

[31]The accused in their own testimony admitted to have applied for Namibian identity documents of which some have obtained already while others are still waiting to receive. According to them, they applied for the Namibian identity documents for their children to be accepted in schools and for other services like the withdrawing of money from their bank accounts.

[32]I am inclined to agree with MrCampher arguing that the accused regarded themselves as Namibiannationals when they or their parents registered them as Namibians and obtained National documents of Namibia. MrCampher argues that the accused are just pretending not to be Namibian citizens because they are in trouble. I do not think MsAgenbach will disagree with her colleague’s argument of MrMushakeMuyongo and the people of Zambezi Region participating in the 1989 general national elections of Namibia.