REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

SENTENCECase no: CC 32/2001

In the matter between:

THE STATEand

CALVIN LISELI MALUMO & 65 OTHERS ACCUSED

Neutral citation: State v Malumo (CC 32/2001) [2016] NAHCMD 43 (8 December

2015)

Coram: HOFF, J

Heard: 6, 7, 8, 9, 12 October 2015; 4, 6 November 2015; 3, 8, 9 December

2015

Delivered: 8 December 2015

Summary: Sentence – General principles restated – crimes of high treason,

murder, attempted murder – The triad consisting of the crime, the offender and the

interest of society considered – Court also to consider the aims of punishment

namely retribution, deterrence, prevention and rehabilitation. Aims of punishment to

be dealt with as part of the interest-of-society component of the Zinn Triad.

Balancing of factors in triad - May emphasize one factor at the expense of another in

REPORTABLE

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appropriate circumstances – ‘Balancing’ should be understood to mean that each

factor afforded a certain weight, not that each factor should be afforded equal weight.

Punishment to be blended with a measure of mercy according to the circumstances

– Mercy has nothing in common with maudlin sympathy for an accused. Period of

time in detention as trial awaiting prisoners must be taken into account – Period in

detention not to be multiplied and subtracted from period of imprisonment regarded

as appropriate, in the circumstances – Such amounts to a misdirection. Period in

detention but one of factors to be considered together with other factors such as

culpability and moral blameworthiness.

Imposition of life imprisonment not in violation of article 8 of Namibian Constitution

and therefore not unconstitutional. Granting of parole – a fact which a court may take

notice of, but not to influence the severity of the sentence – Trial court may not

impose excessively long sentence in an attempt to circumvent the premature release

of the prisoner – ‘Methuselah’ sentence will amount to cruel, inhuman and degrading

punishment – The question as to whether a particular form of punishment authorised

by law can properly be said to be inhuman or degrading involves the exercise of a

value judgment by the court.

The determination of a specific term of imprisonment cannot be achieved according

to an exact, objectively applicable yardstick- There can often be an area of

uncertainty within which opinions as to an appropriate prison term could validly differ.

The crime of high treason a pure political offence committed with a political objective

– The state of mind of accused when offence is committed indicative. Relative

political offences includes otherwise common crimes committed for political motives

or in a political context. Every State has a right to its own sovereignty and to punish

those individuals who by way of unlawful conduct intentionally endeavour to

overthrow the government by force as to endanger the existence or security of the

State or try to change the constitutional structure of the State.

Interest of society – refers to natural indignation of members of community in respect

of the commission of a specific offence and their expectations in respect of the

sentence – Sentence imposed should serve society through the aims of punishment

– Necessary to establish who the community is – Different groups in society may

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differ sharply in their views of the accused’s actions and the sentence to be imposed

– Views of society not to be sought in those who stood at its extremes, but

necessary to consider the views of the informed, reasonable, law abiding and

balanced members of the community. Object of sentencing is not to satisfy public

opinion but to serve public interest. In cases of serious crime the personal

circumstances of the offender by themselves will necessarily recede into the

background. Remorse or lack thereof is a factor to be considered – In order to be a

valid consideration, pentinence must be sincere – Accused must take court fully into

his/her confidence. The determination of whether an accused is sincerely remorseful

and not simply feels sorry for himself/herself is a factual one, often determined from

the actions of the accused rather than what is said in court.

Convictions in respect of several offences – imposition of globular sentence – usually

done in order to ameliorate the cumulative effect of sentences imposed for multiple

convictions – Endorse the idea that imposing separate punishments for separate

offences conduces to clearer thinking in determining appropriate sentence –

Cumulative effect of sentences may be ameliorated by ordering the running together

of sentences or part of sentences. Age of accused is a factor to be taken into

account. Degree of participation in crime and degree of moral blameworthiness of

accused, factors which normally justify the imposition of disparate sentences.

ORDER

1. I am of the view that the following sentences are appropriate sentences

regarding the respective accused persons with due regard to their roles and

the circumstances of this particular case: In respect of (the leaders): Bennet

Kacenge Matuso (accused no 69), Geoffrey Kupuzo Mwilima (accused no.

68), John Sikundeko Samboma (accused no. 54), Alfred Tawana Matengu

(accused no. 79), and Thaddeus Siyoka Ndala (accused no. 70) for their

conviction in respect of the crime of high treason each accused is sentenced

to a period of 35 years imprisonment of which a period of 17 years

imprisonment if suspended for 5 years on condition the accused is not

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convicted of the crime of high treason committed during the period of

suspension.

2. In respect of each count of murder, each accused is sentenced to 30 years

imprisonment of which a period of 12 years imprisonment is suspended for a

period of 5 years on condition that the accused is not convicted of the crime of

murder committed during the period of suspension. In respect of each of the

counts of attempted murder each accused is sentenced to 10 years

imprisonment.

3. This Court orders that the unsuspended periods of imprisonment imposed in

respect of the murder counts and the periods of imprisonment imposed in

respect of the attempted murder counts should run concurrently with the

unsuspended period of imprisonment imposed in respect of the count of high

treason.

4. In respect of: (the attackers/soldiers)

Aggrey Kayabu Makendano

Moses Chicho Kayoka

Richard Libano Misuha

Charles Mafenyeko Mushakwa

Chika Adour Mutalife

Kingsley Mwiya Musheba

Osbert Mwenyi Likanyi

Rodwell Sihela Mwanabwe

Albert Sekeni Mangalazi

Rafael Lyazwila Lifumbela

Postrick Mowa Mwinga

John Pause Lubilo

Chris Puisano Ntaba

Saviour Ndala Tutalife

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and in respect of the conviction of high treason each accused is sentenced to

35 years imprisonment of which a period of 20 years imprisonment is

suspended for a period of 5 years on condition that the accused is not

convicted of the crime of high treason committed during the period of

suspension.

5. In respect of each of the count of murder each accused is sentenced to 30

years imprisonment of which a period of 15 years imprisonment is suspended

for 5 years on condition that the accused is not convicted of the crime of

murder committed during the period of suspension.

6. In respect of each of attempted murder each accused is sentenced to 10

years imprisonment.

7. This Court orders that the unsuspended periods of imprisonment imposed in

respect of the counts of murder and the periods of imprisonment imposed in

respect of the attempted murder counts should run concurrently with the

unsuspended period of imprisonment imposed in respect of the count of high

treason.

8. In respect of: (the supporters)

Bollen Mwilima Mwilima

Charles Nyambe Mainga

Mathews Muyandulwa Sasele

Fabian Thomas Simiyasa

Kester Silemu Kabunga

Mathews Mundi Pangula

Bernard Maungolo Jojo

Richard Simataa Mundia

Martin Siano Tubaundule

9. Chika Adour Mutalife (attacker/soldier) was described by this Court as an

attacker or soldier on 2 August 1999 however this Court in the exercise of its

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discretion has decided to deal with him under this section due to his

youthfulness at the time of his arrest. In respect of the conviction of high

treason each accused is sentenced to 30 years imprisonment of which a

period of 20 years imprisonment are suspended for a period of 5 years on

condition that the accused is not convicted of the crime of high treason

committed during the period of suspension.

10. In respect of the counts of murder each accused is sentenced to 25 years of

which a period of 15 years imprisonment is suspended for a period of 5 years

on condition the accused is not convicted of the crime of murder committed

during the period of suspension.

11. In respect of the counts of the attempted murder each accused is sentenced

to 8 years imprisonment.

12.This Court orders that the unsuspended periods of imprisonment imposed in

respect of the counts of murder and the periods of imprisonment imposed in

respect of the crimes of attempted murder should run concurrently with the

unsuspended period of imprisonment imposed in respect of the count of high

treason.

13. In respect of: (the light-lipped / taciturn)

Victor Masiye Matengu

Alfred Lupalezwi Siyata; and

Bernard Maungolo Jojo (supporter)

14.Bernard Maungolo Jojo (supporter) was found by this Court to be a supporter

in the attempt to secede the Caprivi Region. However I have in the exercise of

my discretion decided to deal with him under this category due to his advance

age in years.

15. In respect of the conviction of high treason each accused person is sentenced

to 20 years imprisonment of which a period of 17 years imprisonment is

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suspended for a period of 5 years on condition that the accused is not

convicted of the crime of high treason committed during the period of

suspension.

16. In respect of the counts of murder each accused is sentenced to 20 years

imprisonment of which a period of 17 years imprisonment is suspended for a

period of 5 years on condition that the accused is not convicted of the crime of

murder committed during the period of suspension.

17. In respect of the counts of attempted murder each accused is sentenced to 8

years imprisonment of which a period of 5 years imprisonment is suspended

for a period of 5 years on condition that the accused is not convicted of the

crime of attempted murder committed during the period of suspension.

18.This Court order that the unsuspended periods of imprisonment imposed in

respect of the counts of murder and attempted murder should run

concurrently with the unsuspended period of imprisonment imposed in respect

of the count of high treason.

19.George Kasana (accused no. 77) was convicted of count 272 ie contravening

s. 2(c) read with section 8(1) of the Departure from the Union Regulation

Amendment Act, 34 of 1955 as amended by the Departure from Namibia

regulation Act, 4 of 1993 (illegal exit from Namibia).

20.Oscar Kashalula Muyuka Puteho (accused 49) was convicted of count 273

similar to count 272 (Illegal exit from Namibia).

21.George Masialeti Lisheo (accused 15) was convicted of count 274 i.e.

contravening s. 6(1) of the Immigration Control Act 7 of 1993 (Illegal entry into

Namibia).

22. In respect of:

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George Kasanga (accused 77); Oscar Muyuka Puteho (accused 49) each

accused is sentenced to 6 months imprisonment which 6 months imprisonment is

suspended in toto for a period of 3 years on condition that the accused is not

convicted of contravening s. 2 (c)1 read with s. 8(1)(a) of the Departure from the

Union regulation Amendment Act, 34 of 1955 as amended by the Departure from

Namibia regulation Act, 4 of 1993 committed during the period of suspension.

George Masialeti Liseho (accused 15) is sentenced to 6 months imprisonment

which 6 months imprisonment is suspended in toto for a period of 3 years on

condition that the accused is not convicted of contravening s. 6(1) of the

Immigration Control Act, 7 of 1993 committed during the period of suspension.

JUDGMENT

HOFF, J:

[1] This Court convicted the accused persons on one count of high treason, nine

counts of murder and ninety-one counts of attempted murder on the basis of

conspiracy to secede the Caprivi Region from the rest of Namibia by violent means.

[2] The Court found the following facts either common cause or not seriously

disputed: That the Republic of Namibia is a sovereign State; that the accused

persons owe allegiance to the Republic of Namibia; that various public and private

meetings were held at different places in the Caprivi Region between 1992 and

1998; that the topic of discussion at these meetings was the secession of the Caprivi

Region from the Republic of Namibia by either violent or non-violent means; that Mr

Muyongo’s army set up camp during October 1998 at Lyibu-Lyibu on the eastern

side of Linyati in preparation of liberating the Caprivi Region by violent means, and

that one Victor Falali was killed after he escaped from this camp at Linyati; that a

group of 92 armed individuals fled to Botswana shortly afterwards; that inhabitants

from the Caprivi Region started fleeing to Botswana in order to seek education,

employment and an opportunity to liberate the Caprivi Region by violent means; that

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the conspiracy to secede the Caprivi from the rest of Namibia continued unabated in

Botswana; that a plan was hatched in Botswana that refugees should escape and

return to Namibia; that a group of approximately 100 Namibian men with fire-arms

gathered at Navumbwe and Island were treated by a traditional healer in preparation

of the imminent attack on the Caprivi Region; that from 31 July to 1 August 1999

people gathered at Makanga bushes in preparation for the attack; that at Makanga

those present were transported in a government owned TATA truck and other

vehicles, were registered, and thereafter divided into groups in order to attack

specific targets; that at Makanga after final instructions, the co-conspirators were

transported and some walked to their various destinations of attack; that during the

early hours of the morning on 2 August 1999 various Government institutions in the

Caprivi Region were attacked with mortars and fire-arms; that the institutions that

were attacked were ‘Katounyana Special Field Force base, Katima Mulilo police

station, Wanela border post, Katima Mulilo town centre, the Namibian Broadcasting

Corporation in Katima Mulilo, Mapacha military base, and the house of sergeant

Patrick Liswani; that the attackers tied red ribbons around their heads; that as a

result eight police officers and soldiers lost their lives; that a state of emergency was

declared in the Caprivi Region and Inspector Goraseb, the Regional Commander of

the of the Namibia Police Force in the Caprivi Region, was instructed ‘to arrest all the

prominent and executive members of the United Democratic Party (UDP)’, and that

after the attack the rebels regrouped at Cameroon, Masokotwane, Malongwa Island

and Kaliyangile with the aim to launch a second attack.

[3] This Court found that the UDP established a military wing known as the

Caprivi Liberation Movement/Caprivi Liberation Army in order to facilitate the

secession of the Caprivi region from the rest of Namibia, by force.

[4] I shall later deal with the participation of each accused person in their attempt

to secede the Caprivi region.

[5] In considering and appropriate sentence where an individual has been

convicted of a criminal offence, ‘the difficulty arises, not so much from the general

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principles applicable, but from the complicated task of trying to harmonize and

balance these principles and apply them to the facts’.1

[6] The general principles to the considered in the determination of an

appropriate sentence are principles developed by the courts over the years and are

not found in any statute. These general principles, also referred to as the triad,

consist of the crime, the offender, and the interests of society.2 In the determination

of an appropriate sentence a Court must also consider the aims of punishment

namely retribution, deterrence, prevention and rehabilitation. In respect of the

question of how the aims of punishment should be incorporated into the Zinn triad,

SS Terblance3 suggests that ‘theoretically’, the aims of punishment ‘should be dealt

with as part of the interest-of-society component of the Zinn triad’.

[7] It has been stated that in sentencing a court must strive to balance the three

factors in the triad. However it is an accepted principle that a court may, depending

on the circumstances, emphasise eg the seriousness of the offence at the expense

of the personal circumstances of an accused person, and that ‘balancing’ should be

understood to mean each factor should be afforded a certain weight, not that each

factor should be afforded equal weight. Levy AJP4 said in this regard that were ‘the

nature of the offence arouses moral indignation and the purpose of the penalty is

clearly retributive, the interests of the accused are then secondary to those factors’.

[8] Holmes JA5 remarked in general: ‘Punishment should fit the criminal as well

as the crime, be fair to society, and be blended with a measure of mercy according

to the circumstances’.

[9] This Court held that: ‘Compassion for the offender is the mark of an

enlightened society. What constitutes mercy in a particular case and its application

can be elusive,’6 but that mercy has nothing in common with maudlin sympathy for

1 S v Rabie 1975 (4) SA 855 (A) at 862G-H with reference to S v Van Wyk 1993 NR 426 (SC).2 S v Zinn 1969 (2) SA 537 (A) at 540 G-H3 Guide to Sentencing in South Africa, 2nd Edition 2007, p 1554 S v Vekueminina and others 1993(1) SACR 561 (Nm) at 564 b; a full bench decision.5 S v Rabie 1975(4) 855 AD at 862 G6 S v Tjiho 1991 NR 361 at 365 G per Levy J

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the accused, and recognises that fair punishment may sometimes have to be

robust.7 Damaseb JP in this regard stated the following:8

‘A sentencing judge must never loose sight of the importance of blending his or her

sentence with a measure of mercy. In my view, exercising mercy does not mean that the

Court must abdicate its responsibility to protect society; nor does it mean that convicted

prisoners must always get away it light sentences. Properly construed, what it means is that

if the facts and circumstances of the case call for it, a Court must blend its sentence with

some mercy and give the accused another chance in life by imposing a sentence that either

keeps the convicted person out of prison or returns the convict to the community after only a

brief period in prison. In certain cases that may well not be possible in view of the

seriousness of the offence and the interests of society which require deterrent treatment of

the offender.’

[10] A factor which must be taken into account in the determination of an

appropriate sentence is the period of time in detention as a trial awaiting prisoner. It

was submitted by Mr Samukange that the period in detention should be multiplied by

three (according to some authorities) and that figure taken into consideration in

determining the final term of imprisonment to be served by an accused person.

Where as in the present instance a number of accused persons had been in custody

for 16 years, this means that such an accused person has already served 48 years

in prison and should at this stage be released.

[11] The Supreme Court of Namibia (per Strydom AJA)9 held in this regard that

‘such a period is not arithmetically discounted and subtracted from the overall sum of

imprisonment imposed. This is a factor which is considered together with other

factors, such as the culpability of the accused and his or her moral blameworthiness,

to arrive at an appropriate sentence in all the circumstances of a particular case’.

7 S v Rabie (supra) at 862 D-F8 S v Stoney Raymond Neidel and two others, unreported judgment delivered on 21 November 2011, Case No CC 21/2006 High Court of Namibia. 9 Muuamuhona Karirao and The State, unreported judgment delivered on 15 July 2013 par 23, p 14; Case SA 70/2011.

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[12] In the matter of The Director of Public Prosecutions North Gauteng: Pretoria

and Skhosiphi Gcwala and Two Others 10 with regard to a similar submission, Lewis

JA said:

‘The submission probably has its origin in S v Brophy and another 2007(2) SACR 56

(W), where the court held that as a rule of thumb, “imprisonment while awaiting trial is the

equivalent of a sentence of twice that length” – a quotation from a Canadian case, Gravino

(70/71) 13 Crim LQ 434 (Quebe Court of Appeal), cited also in S v Stephen and another

1994(2) SACR 163 (W) at 168 e-g. The rule of thumb was not approved in S v Vilakazi and

others 2000(1) SACR 140 (W) at 148 a-e and this court has recently doubted its application

and, in S v Radebe and another 2013(2) SACR 165 (SCA), ruled it to be inappropriate.’

[13] It appears that the rationale for this rule of thumb is that the time spend in

custody awaiting trial is equivalent to twice that length because of the harsher

conditions to which awaiting-trial prisoners are subjected in comparison with

convicted prisoners.

[14] Lewis JA in Radebe stated: ‘A better approach, in my view, is that the period

in detention pre-sentencing is but one of the factors that should be taken into

account in determining whether the effective period of imprisonment to be imposed is

justified: whether it is proportionate to the crime committed. Such an approach would

take into account the conditions affecting the accused in detention and the reasons

for a prolonged period of detention. It was held that the doubling of the period spent

in custody, cannot be justified and that the deduction of such a period from the

number of years the trial court thought was warranted, amounted to a misdirection.11

[15] In view of the authorities referred to, the submission that the period in

detention prior to sentence should be multiplied, cannot be considered. It appears

from the submissions by counsel for the defence as well as counsel on behalf of the

State that a term of imprisonment would be an appropriate sentence in respect of the

convictions for the crimes of high treason, murder and attempted murder, but

divergent arguments were presented in respect of the nature of such imprisonment,

10 Unreported judgment of the Supreme Court of Appeal of South Africa, delivered on 31 March 2014, Case no: 295/13 para 10.11 The Director of Public Prosecutions (supra) para 19.

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namely whether it should be in the nature of suspended terms of imprisonment or

direct terms of imprisonment.

[16] In respect of a direct term of imprisonment, disparate submissions were made

in respect of the length of such term of imprisonment.

[17] Some defence counsel argued for totally suspended sentences or short terms

of imprisonment, whilst Mr July, counsel on behalf of the State urged this Court to

impose very long terms of imprisonment. Mr July submitted with reference to the

matter of Stoney Neidel (supra) where accused persons had been convicted (inter

alia) of eight counts of murder, and where sentences of 105 years imprisonment and

84 years imprisonment had been imposed on two of the accused persons, that this

Court would be justified to impose a determinate term of imprisonment of ‘three

digits’.

[18] Mr July was very emphatic that the State does not argue for the imposition of

imprisonment for life, on the basis that a person can only serve one term of life

imprisonment. It was further submitted that should this Court, for example, impose

life imprisonment for the crime of high treason, an accused person would not be

punished in respect of the murder and attempted murder convictions. I understand

this argument (although not expressly stated by Mr July) to be founded on the fact

that any determinate term of imprisonment or another terms of life imprisonment

would automatically run concurrently with the first term of life imprisonment imposed

upon an accused person.

[19] One of the questions considered by the Supreme Court of Namibia in S v

Tcoeb12 was whether life imprisonment was in violation of Article 8 of the Constitution

of Namibia which prohibits the imposition of cruel, inhuman or degrading

punishment, and therefore unconstitutional. The response to this question by

Mahomed CJ was that there ‘can be little doubt that a sentence which compels any

person to spend the whole of his or her life in incarceration, divorced from his family

and friends in conditions of deliberate austerity and deprivation, isolated from access

to and enjoyment of the elementary bounties of civilised living is indeed a 12 1996(1) SACR 390 (Nm).

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punishment of distressing severity. Even when it is permitted in civilised countries it

is resorted to only in extreme cases either because society legitimately needs to be

protected against the risk of repetition of such conduct by the offender in future or

because the offence committed by the offender is so monstrous in its gravity as to

legitimate the extreme degree of disapprobation which the community express

through such a sentence’.

[20] Chief Justice Mahomed continued as follows:

‘It seems to me that the sentence of life imprisonment in Namibia can therefore not

be constitutionally sustainable if it effectively amounts to an order throwing the prisoner into

a cell for the rest the prisoner’s natural life as if he was a “thing” instead of a person without

any continuing duty to respect his dignity (which would include his right not to live in despair

and helplessness without any hope of release, regardless the circumstances.’

[21] The Chief Justice concluded his response to the question posed as follows:

‘For the reasons I have articulated I am unable to hold that life imprisonment as a

sentence is per se unconstitutional in Namibia, regard being had to the fact that the relevant

legislation permits release on parole in appropriate circumstances’.

[22] The evidence before this Court is that in terms of the current legislation

applicable in Namibia13 a prisoner, sentenced to an indeterminate period of life

imprisonment is eligible to be released on parole where such a prisoner has served

at least a period of 25 years imprisonment and where the National Release Board is

satisfied that certain prescribed conditions have been met. Where a prisoner serves

a determinate term of imprisonment for the commission of a scheduled offence such

a prisoner would be eligible to be released on parole where he or she has served

two thirds of his or her imprisonment. The Correctional Service Act makes also

provision for release on medical grounds and pardon or reprieve by the President.

[23] The granting of parole is a fact which courts may take notice of14, but it may

not influence the severity of the sentence. A trial court may not impose an

13 The Correctional Service Act, 9 of 2012 and the Regulations promulgated thereunder.14 Sentencing in South Africa p 233.

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excessively long sentence in an attempt to circumvent the premature release of

prisoners by the executive branch of government.15 Farlam JA16, on this point

expressed himself as follows:

‘. . . under the law as it presently stands, when what one may call a Methuselah

sentence is imposed (i.e. a sentence in respect of which the prisoner would require

something approximating to the longevity of Methuselah if it is to be served in full) the

prisoner will have no chance of being released on the expiry of the sentence and also no

chance of being released on parole after serving one half of the sentence. Such a sentence

will amount to cruel, inhuman and degrading punishment which is prescribed by s.12(1)(e) of

the Constitution of the Republic of South Africa Act 108 of 1996.’

[24] In Nkosi an accused person was convicted of nine counts of murder and ten

counts of attempted murder and sentenced to an effective period of 120 years

imprisonment by the trial court. On appeal the sentence was set aside and

substituted with one of life imprisonment. The question this Court posed to all

counsel in view of the suggestion that this Court should impose direct imprisonment

of ‘three digits’ whether such a sentence would not be in violation of Article 8 of the

Namibian Constitution and therefore unconstitutional. All defence counsel were of

the view that such a sentence would amount to cruel, inhuman or degrading

punishment.

[25] Mohamed CJ (supra) in the context of life imprisonment expressed the view

that depending on the nature of the offence, a punishment which is grossly

disproportionally in its severity may well constitute cruel, inhuman or degrading

punishment.

[26] I am of the view that where a determinate term of punishment is imposed

which may qualify as a ‘Methuselah’ sentence, such a punishment, depending on the

particular circumstances of the case, may be in violation of Article 8 of the

Constitution of Namibia, and therefore unconstitutional, where any hope of ever

being released on parole is extinguished or eliminated.

15 S v Bull and another; S v Chavulla and others 2001(2) SACR (SCA) 681 at 694 a-b (per Vivier ADCJ).16 S v Nkosi and others 2003(1) SACR 91 (SCA) at p 95 c-e.

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[27] Mahomed AJA17 remarked:

‘The question as to whether a particular form of punishment authorised by law can

properly be said to be inhuman or degrading involves the exercise of a value judgment by

the Court. (S v Ncube and others (supra at 717 I). It is however a value judgment which

requires objectively to be articulated and identified, regard being had to the contemporary

norms, aspirations, expectations and sensitivities of the Namibian people as expressed in its

national institutions and its Constitution, and further having regard to the emerging

consensus of values in the civilised international community (of which Namibia is a part)

which Namibians share. This is not a static exercise. It is a continually evolving dynamic.

What may have been acceptable as a just form of punishment some decades ago, may

appear to be manifestly inhuman or degrading today. Yesterday’s orthodoxy might appear

to be today’s heresy’.

[28] It must be stated that where a trial court imposes a sentence it exercises a

judicial discretion in accordance with judicial principles18, and it has been held19 that

‘… it would be unrealistic to overlook the fact that determination of a specific

imprisonment term cannot be achieved according to an exact, objectively applicable

yardstick and that there can often be an area of uncertainty within which opinions as

to an appropriate prison term could validly differ’.

[29] I shall now deal with the crimes of which the accused persons had been

convicted of namely high treason, murder and attempted murder. These are all very

serious crimes. I have already dealt with the backdrop against which these crimes

had been committed. The majority of defence counsel submitted that these crimes

and in particular the crime of high treason, in the particular circumstances, be viewed

as ‘political offences’. Mr July who appeared on behalf of the State disagreed.

[30] This Court was referred to the matter of Republic of Namibia v Alfred and

Others20 where Tebbut JA was concerned with an application for extradition of 13

17 Ex Parte Attorney General, Namibia: In Re Corporal Punishment 1991 (3) SA 76 (NmSC) at 86H-J at 87A.18 Ttjiho (supra) at 364.19 S v Matlala 2003 (1) SACR 80 (SCA) at 83 d-e.20 2004(2) BLR 101 (CA) concurred by Korsah, Plewmann, Lord Southerland and Grosskopf JJA .

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persons from Botswana to Namibia in order to face certain charges inter alia high

treason. The respondents were part of the Caprivi Liberation Army which desired to

secure the secession of the Caprivi Region (now Zambezi Region) from the rest of

Namibia. The pertinent question to be considered was whether high treason is a

political offence. In terms of the relevant legislation a person is exempted from

extradition where such a person is to face, in the requesting country, a charge of

political character.

[31] Tebbut JP stated that the phrase an ‘offence of a political character’ has been

called ‘inherently imprecise’ and after having examined case law in the United

Kingdom as well as in the USA, concluded that in both these jurisdictions treason

has been said to be a political offence. He expressed himself as follows:

‘A distillate of those views would therefore be that to constitute an offence of a

political nature the person committing such offence should be at odds with the government

of his state and the offence should be an incident of a political struggle, either in existence or

in contemplation, between the government and one or more opposing factions where the

offence is committed. It would also not be necessary that the political objective of the alleged

offender should be the overthrow of the government of his state. It would suffice if the

objective was to compel the government to change its policy in regard to one or other aspect

of governance with which the accused is at odds with the state. This could include bringing

about the unconstitutional secession of a region. The use of violent measures would also

not take away the political nature of an offence’.

[32] And continued as follows:

‘In the Pitawanakwat case21 supra Stewart J citing the Quinn case22 said:

“Political offences traditionally fall into one of two categories: ‘pure political offices’ or

‘relative political offences’. ‘Pure political offences’ are acts aimed directly at the government,

and have none of the elements of ordinary crimes. These offences which include treason,

sedition, and espionage do not violate the private rights of individuals. In contrast, the

category of relative political offences includes ‘otherwise common crimes committed in

21 United States v Pitawanakwat 120 F Supp 2d 921 (D Or 2000). 22 Quinn v Robinson (1986) 783 F 2d 776.

18

connection with a political act’ or common crimes … committed for political motives or in a

political context.’

[33] I agree that high treason by its very nature is a crime committed with a

political objective. This objective distinguishes crimes the accused had been

convicted of from those, for example, in the Stoney Neidel case which was described

as ‘gruesome mass murders’ committed by one particular accused. Another

distinguishing factor is that no one accused person in this matter has been identified

as an individual responsible for the killing of a particular deceased person.

[34] No evidence was presented that in their quest for independence the UDP

through public discourse tried to engage the government in negotiations in order first

to explore the avenue of a constitutional settlement.

[35] It is apparent from the interview conducted shortly after the attack that it was a

deliberate strategy of Mishake Muyongo to attack first, and thereafter try to engage

in negotiations. Nevertheless, in my view the nature of the offences remain the

same, namely, pure political (high treason) and relative political offences (murder

and attempted murder).

[36] One of the juristic elements of the political offence, as stated in the Alfred

case, is the mental element ie the state of mind of an accused when he committed

the offence.

[37] I endorse the sentiments expressed by Jordaan J in the matter of The State

against Michael du Toit and 22 others23 (commonly referred to as the ‘Boeremag’

case) where it was stated that every State in the world has a right to its own

sovereignty and to punish those individuals who by way of unlawful conduct

intentionally endeavour to overthrow the government by force or to endanger the

existence or security of the State or try change the constitutional structure of the

State.

23 Unreported judgment in case no. CC 91/2003 North Gauteng High Court (Pretoria) delivered on 29 November 2013.

19

The offender

[38] I shall now deal with the individual accused persons.

Clients of Mr Kauta

Bollen Mwilima Mwilima – accused no. 65

[39] This accused did not testify in mitigation of sentence. Mr Kauta placed the

following personal particulars on record:

[40] The accused was born on 28 May 1967; was arrested on 4 August 1999; was

married and is the father of five children; the eldest child is 25 years old and the

youngest 17 years. The accused was a teacher and holds a certificate in Higher

Education and is in his final year of study for a Master’s Degree in Education with the

University of South Africa. Prior to his arrest he was a farmer and owned a house.

He is currently suffering from acute high blood pressure. During and after his arrest

was assaulted by members of the Namibian Police Force. The accused did not

personally take part in the attack on 2 August 1999 and was described as a

supporter by Mr July, counsel appearing on behalf of the State.

[41] This Court found that the accused was a supporter of the Caprivi Liberation

Army; he donated money for the purchase of weapons, provided his vehicle to a co-

accused Thaddeus Ndala, who in turn used the vehicle to provide food and water to

a group of rebels in the bush; he incited persons to join rebels in the bush, and

threatened a witness who had been to Dukwe refugee camp with death for allegedly

spreading false rumours about the conditions at Dukwe, he personally transported

people to the Botswana border in order to advance the cause, he was one of a group

of persons who went to warn Muyongo that it was time to flee the country after the

death of Victor Falali, he went to Dukwe refugee camp in order to relay information

and to render assistance to the refugees, and his co-conspirators acknowledged him

rendering a great deal of assistance to the people in the bush.

20

[42] All defence counsel in their respective addresses on sentence including Mr

July on behalf of the State, referred to a factor which the sentencing court must take

into account namely, the moral blameworthiness of a particular accused person and

the need for individualisation. This Court was referred to relevant case law in the

regard.24

[43] This Court in S v Kanguro25 stated the following regarding moral

blameworthiness:

‘In determining what an appropriate sentence under the circumstances of this case

would be, the accused’s mental condition, and more specifically her state of mind at the time

of committing the offence, is a crucial factor in the court’s determination of accused’s moral

blameworthiness. It is trite that the degree of moral blameworthiness should be reflected in

the sentence imposed on the offender.’

[44] Mr July referred to Bollen Mwilima as a ‘leading supporter’ who actively

availed himself and his resources to the cause and that he tried unsuccessfully to

downplay his role in court.

Alfred Lupalezwi Siyata – accused no. 80

[45] This accused person did not testify in mitigation of sentence. His personal

circumstances were placed on record from the bar. He was employed by the

Namibia Government as a security officer and was arrested on 4 August 1999. He is

51 years old. He was married but his wife passed away on 19 March 2005. During

his arrest he was assaulted by members of the Namibian Police. He was a member

of SWAFT Battalion 701. He completed Grade 12. He is the father of three children,

two of whom are majors and the youngest child is a minor and in Grade 8. He is

presently suffering from high blood pressure. The accused did not personally

participate in the attack on 2 August 1999.

24 The State v Joseph Johannes Kleynhans and others (HC) delivered on 19 September 1991 unreported S v De Kock 1997(2) SACR 171 TPD; The Director of Public Prosecutors North Gauteng: Pretoria (supra).25 2011(2) NR 616 (HC) at para. 6 and 7, per Liebenberg J.

21

[46] This Court found that the accused person on the strength of evidence

presented by the State and from his own testimony that the accused had known

about plans to secede the Caprivi region from the rest of Namibia and failed to alert

the authorities about such plans.

[47] Mr July submitted that the accused had shown no remorse for his actions or

failure to act, that such failure resulted in the attack and subsequent deaths and

injuries to victims that the accused actively supported those individuals who went to

Botswana and that his age (being a mature adult person at the time of the

commission of the offences) must be taken into account as an aggravating factor;

that the accused provided support to the CLA whose members’ actions subsequently

caused the death of Victor Falali.

Charles Nyambe Mainga – accused no. 87

[48] The accused did not testify in mitigation of sentence. The accused is 54

years old, is married and the father of three children and a grandfather. He obtained

a Grade 12 certificate and was at the time of his arrest on 4 August 1999 employed

by Telecom Namibia. He started his employment on 30 March 1991. He was

previously employed by Nampost and prior to that was a member of the SWATF

from 1985 until 1989. He owned a house and motor vehicle prior to his arrest. He

was assaulted by members of the police force. He is presently suffering from high

blood pressure and diabetes and has developed during his incarceration severe

asthma and is on ‘chronic medication’. The accused did not personally participate in

the attack on 2 August 1999.

[49] The finding of this Court at par 23 of the trial reads as follows in respect of the

involvement of the accused in the attempt to secede the Caprivi Region:

‘If one has regard to the contradictions in his testimony, his evasiveness during

cross- examination and the evidence of the State witness, these considerations, compel me

to conclude that his denial that Richard Mbala was employed for the period mentioned is not

reasonable possibly true and is rejected This in turn implies that the accused indeed had the

opportunity to speak to Richard Mbala and that he indeed had the conversation with the

22

witness as testified. This in my view supports the contention that the accused actively

supported the idea of seceding the Caprivi region and the he had known about an

impending attack by the CLA in order to achieve this goal and did not inform the authorities

about it.’

[50] This accused person not only had knowledge of an impending attack but he

advocated the secession of the Caprivi from the rest of Namibia.26 It was submitted

by Mr July inter alia that this accused person showed no sign of remorse.

Mathews Muyandulwa Sasele – accused no. 100

[51] The accused did not testify in mitigation of sentence. The accused is 57 years

old. He was arrested on 5 August 1999. The accused passed Grade 12 and at the

time of his arrest was unemployed. Prior to his arrest he was employed as a police

officer from 1990 until 8 April 1999 when he was discharged. The accused was

previously employed as a storeman at SWATF. He was assaulted by members of

the Namibian Police Force during his arrest and subsequent incarceration. The

accused is married and the father of seven children of whom three are still attending

secondary school. The remaining four children are employed. The accused is

suffering from acute diabetes, hypertension, and gout and takes medication on a

daily basis. The accused did not personally participate in the attack. The accused

was an active supporter. He attended meetings where the issue of secession by

violent means were discussed and expressed support for that cause.

[52] This Court stated the following in the trial judgment:27

‘The accused was an untruthful witness and tried, unsuccessfully in my view, to

present himself as apolitical police officer, and a person who was not in the least interested

or involved in local politics. His denial of any involvement cannot be accepted in view of the

uncontested evidence to the contrary as reasonably possible true …’

[53] Mr July submitted that this accused also showed no remorse for his

involvement in the attempt to secede the Caprivi Region.

26 Para 206 & 207 of judgment.27 At par 314

23

The clients of Mr Kavendjii

Aggrey Kayabu Makendano – accused no. 11

[54] The accused did not testify in mitigation of sentence. His personal

circumstances were placed on record form the bar. The accused is 48 years old.

He completed his secondary education in 1993. During 1995 to 1997 he was a

student at the University of Namibia where he obtained a BA degree. Thereafter he

taught briefly from 4 February 1998 until 31 December 1998. During his incarceration

he obtained a Postgraduate Diploma in Education. He also obtained a Bachelor of

Education Honours Degree from the North West University. The accused is presently

enrolled with UNISA for the degree in Education Management.

[55] The accused was married but during 2001 his wife returned to her family and

is presently cohabiting with another man. The accused is the father of five daughters.

The eldest one was born on 26 August 1987 and the last one was born on 13

February 1999. Two of the children left school due to lack of financial support. Two

children stay with their mother and are in Grades 9 and 10 respectively. One

daughter is studying for a Diploma in Archives and Record Management at the

University of Namibia. The father and mother of the accused passed away during

2007 and 2009 respectively. He had also lost a brother and a sister whilst in

incarceration. The accused was arrested on 12 August 1999.

[56] This Court found the following in respect of the involvement of this accused:28

‘The evidence presented to Court is that the Caprivi Liberation Army also known as

the Caprivi Liberation Movement was established by the UDP, as an instrument to liberate

the Caprivi Region by violent means with the aim to establish an independent State. In order

to achieve this ultimate goal, it was politically expedient to sacrifice human lives.

Accused no. 11 in his bail application testified that he went to Botswana in order to achieve

this ultimate aim, namely the attainment of the independence of the Caprivi region. The

28 Paras 1003 and 1004

24

accused as a member of the Caprivi Liberation Movement was prepared to make his own

contribution through the “barrel of the gun”. His testimony was that he left Dukwe refugee

camp and crossed illegally into Zambia as a member of the Caprivi Liberation Movement. In

Zambia, he and others received training from co- accused John Samboma. The only

training they could have received was military training in preparation for attacks in the

Caprivi region. Accused no. 11 was arrested a few days after the attack on Katima Mulilo.’

[57] There is testimony that the accused was seen at Makanga bush on the

evening prior to the attack where rebels had been divided into certain groups with

the aim to attack different targets. During the trial the accused acted a spokesperson

on behalf of a group of undefended accused persons and addressed this Court and

the views expressed by him was described by this Court as follows:29

‘What the accused informed his Court during his address is in my view much more

than just a confirmation of his challenge to the jurisdiction of this Court. It is consistent with

his political views he held when he fled to Dukwe and subsequently to Zambia in his

capacity as member of the Caprivi Liberation Movement, and consistent with the aims of the

CLA, namely an independent Caprivi’.

[58] The role of the accused was that of a soldier or attacker. It was submitted by

Mr July that the accused showed no remorse for the loss of lives caused as a result

of the attack.

George Masialeti Liseho – accused no. 15

[59] He did not testify in mitigation of sentence. He was convicted of unlawfully

entering Namibia. He is 55 years old and the father of three daughters. He left

school when he was in Grade 10. The mother of his children passed away while he

was in custody. Both his mother and father passed away whilst he was in custody.

He has one surviving sister.

29 Par. 1005

25

The clients of Mr Dube

Moses Chicho Kayoka – accused no. 47

[60] The accused did not testify in mitigation of sentence. He is 65 years old. His

parents, now deceased, were communal farmers. The accused received no formal

education. He is married and was the father of six major children. At the time of his

arrest on 2 September 1999 he had two wives. His first wife passed away during the

year 2001. The accused was the sole breadwinner of his family. Three of his

children died whilst he was in custody. Prior to his arrest he was a productive

communal farmer. He was employed as a cleaner at Makanga Combined School

from 1990 to 1998.

[61] The communal farming activities collapsed after his arrest. He is a first

offender. He suffers from ‘intense’ high blood pressure’. The accused was mistreated

at the time of his arrest. Mr Dukwe asked this court to temper the sentence to be

imposed upon the accused with a measure of mercy.

[62] This Court found in respect of the involvement of this accused the following:30

‘The evidence of the witness Simulu related to an event prior to 2nd August 1999

when the accused, as testified, was amongst a group of persons who sought military

assistance from UNITA in order to secede the Caprivi region by violent means. The

evidence of Munyika (and other members of NDF) relates to an event after 2nd August 1999

after the attack on Katima Mulilo. There is evidence before this Court that after the failed

attempts on 2nd August 1999, there was an attempt to organise the conspirators for a second

attack in the Caprivi region. The evidence presented by the State constitutes direct and

undisputed evidence that the accused participated in events prior to and after the attack on

2nd August 1999.’

[63] On 1st September 1999, the day prior to his arrest the accused was in

possession of an automatic rifle (AK47). The accused was a soldier or attacker in the

effort to secede the Caprivi Region. It was further submitted by Mr July that the

30 At par 896

26

accused was part of the group of 92 which group was responsible for the death of

Victor Falali.

Richard Libano Misuha – accused no. 48

[64] This accused did not testify in mitigation of sentence. The accused is 59

years old. The parents of the accused were communal farmers. His father died in

1997. His mother is 82 years old. Other family members also died during the period

of his incarceration. The accused passed standard 3 at Masida Primary School. He

was arrested on 7 November 1999. The accused is married and the father of five

major children who did not attain any meaningful standard of education due to the

fact that no one could financially support them due to the incarceration of the

accused. The accused was the sole breadwinner and prior to his arrest was a

successful communal farmer. The farming activities collapsed as a result of his

arrest. He is a first offender. He suffers from high blood pressure. He prays that the

sentence to be imposed be tempered with a measure of mercy.

[65] This Court found that the evidence was that the accused was present at

Makanga bush the night prior to the attack on 2 August 1999. It was here at

Makanga bush that the rebels were divided into groups in order to attack different

targets. One of the witnesses testified that the accused was armed. The court

concluded:31

‘The accused did not testify in his defence. There is direct evidence implicating the

accused in the offence of high treason. This evidence called for an answer but none was

forthcoming from the accused.’

[66] It was submitted by Mr July that this accused was part of the group of 92

which group was responsible for the death of Victor Falali. The accused was an

attacker on 2 August 1999.

31 Par 886

27

The clients of Mr. Samukange

Benet Kacenze Mutuso – accused no. 69

[67] This accused did not testify in mitigation of sentence. The accused is 54

years old, is married and the father of four children. The eldest son was born on 3

February 1984 and the youngest, a daughter was born on 3 July 1989. He is the

grandfather of two grandchildren who were born whilst he was in detention. Both his

parents are deceased. He was arrested on 16 March 2000 at a roadblock. Whilst in

custody at the military base in Grootfontein he was shot with an AK 47 in his right

leg, had to undergo an operation which resulted in him having a ‘short foot’.

[68] Whilst at school he advanced until Grade 10. He was admitted at the

Christian Leadership University in the USA ‘on mature entry’ and now holds a degree

in Christian Ministry. He was previously employed by SWATF and employed as a

petrol attendant at Zambezi Shell Filling Station until 28 th October 1998 at which

stage he left for Botswana ‘due to harassment’.

[69] In documentary evidence received by this Court the accused referred to

himself by the name ‘Spiderman’ and as a ‘Brigadier’ in the CLA. He was a leader

figure and was committed to fight militarily for the independence of the Caprivi

Region from Namibia. He was the author of documents seized inside Mpacha

military base in which a plan to invade the Caprivi region was described in graphic

detail and his role in the plan to attack the Region. The accused also propagated the

secession of the Region from the rest of Namibia. The connection between the UDP

and the CLA is also apparent from these documents. He was arrested on 29 April

2000.

[70] It was submitted by Mr July that the accused should be judged harshly for

being responsible for killing and injuring former colleagues in the NDF at Mpacha

military base.

28

Charles Mafenyeko Mushakwa – accused no. 73

[71] This accused did not testify in mitigation of sentence. He is 54 years old, is

married and a father of three girls. The mother of these girls is unemployed and the

children have become destitute. His father passed away in 2012 and his mother is

79 years old and unable to look after herself. He was assaulted upon his arrest. He

is suffering from various ailments and has ‘continuous health problems’. At once

stage during the trail he was unable to attend court proceedings continuously for a

period of six months and is presently using crutches to get along.

[72] This Court found the involvement of the accused to be as follows:32

‘It is common cause that the accused was in Zambia during June 1999. It is not

disputed that the accused was together with accused no. 72 when they were arrested on 18

June 1999. It is also common cause that the accused who was part of the Steven Mamili

group was handed over to members of the Namibia Police Force by members of the

Zambian Force on 7 August 1999. Christopher Lifasi Siboli testified and stated that Charles

Mushakwa was someone who recruited persons for the CLA and that he was also a

mobilisor of persons in connection with the secession of the Caprivi Region. This witness

identified Charles Mushakwa in Court as accused no. 73.’

[73] This accused was also part of a group of individuals led by John Samboma

first into Zambia and thereafter into Angola in order to seek military assistance from

UNITA with the aim of seceding the Caprivi region by violent means. When the

attack took place on 2 August 1999 this accused was in prison in Zambia and could

not have participated in the execution of events which took place on that day.

Nevertheless the excursion into Angola occurred shortly after 2 October 1998 at a

stage when the accused was not in Zambia.

[74] The accused was one of the attendants at a meeting during 1998 where the

topic of discussion was the secession of the Caprivi Region. There is further

documentary evidence to the effect that the accused was part of a group of persons

who during 28/29 October 1998 fled with Muyongo to Botswana. This fact, it was

32 At par. 917.

29

submitted by Mr July, shows that the accused was a close confidante of Muyongo.

This accused can be described as a soldier and a leader figure in the CLA.

Clients of Mr Neves

Chika Adour Mutalife – accused no. 2

[75] This accused did not testify in mitigation of sentence. He was 19 years old

when he was arrested on 9 August 1999. It was submitted by Mr Neves that the

accused does not associate himself with the ideologies of the UDP. He was in

Dukwe and returned through repatriation to Namibia. The father of the accused was

a communal farmer. Whilst in detention the accused obtained a certificate of

secondary education from Cambridge International, from the Ministry of Education

and Sport, Namibian Secondary Certificate and a diploma in Veterinary Surgery

Assistant. His father was also arrested in this matter but died during September

2002. He has six sisters. His mother died whilst he was in detention. His sisters all

dropped out of school due to a lack of parental guidance and financial assistance.

He was severely assaulted by members of the NDF and members of the Police

Force. He has remorse but has not killed anybody. He spent the years of his youth

incarcerated.

[76] This Court found that the evidence of the accused that he went to Botswana

for the purpose of education is highly unlikely in view of his answers given during

cross-examination. This Court further found33 that the ‘testimony of John Libuku that

the accused and Rodwell Sihela had told him that they went to fight at the police

station and that the fight did not last long, since they were few and ran away, was

never disputed by the accused during cross-examination. The accused also never

denied this evidence during his evidence-in-chief and this evidence stands

uncontradicted’.

[77] And found further:34

33 At par 597.34 At par 601.

30

‘If one has regard to the uncontroverted evidence in respect of the contents of a

conversation after the attack in respect of a fight at the police station, the appearance of the

accused person (i.e. he was soiled with dirt), the conversations prior to the attack, the bare

denials by the accused and the fact that the accused was a poor witness, compel me to

conclude that the accused participated in a conspiracy with hostile intent and with the aim to

secede the Caprivi from Namibia by violent means or at the very least had knowledge

thereof and failed to alter the relevant authorities.’

[78] The accused was in my view one the attackers.

Kingsley Mwiya Musheba – accused no. 9

[79] The accused did not testify in mitigation of sentence. He is 57 years old, was

a communal farmer, and had no formal education. He is the father of five children.

Due to financial constraints some of the children dropped out of school at an early

age. He has seven grandchildren. His father is 98 years old. His mother passed

away when he was still at a young age. He has suffered financially after his arrest.

He lost all 15 heads of cattle he had. He was arrested on 2 August 1999. He was

the sole breadwinner of the family. After his arrest he was tortured at Mpacha military

base by member of the NDF. The accused is ‘sorry’ for those who lost their lives but

says that he was not responsible. He wants to go home in order to support his

family.

[80] This Court found that the accused person was one of four rebels who had

been arrested inside the premises of Mpacha military base on the morning of 2

August 1999 just after the attack. His role in the attempted secession was therefor

that of an attacker or soldier.

Geoffrey Kupuzo Mwilima – Accused No. 68

[81] This accused did not testify in mitigation of sentence. The accused was

employed as a teacher since 1978 at various secondary schools in the Caprivi

Region and also served as a principal at two secondary schools. Prior to the

Independence of Namibia he was a member of Parliament in the transitional

government. From 1992 until 1999 he served as a member of Parliament in an

31

independent Namibia representing the DTA. He married his second wife in 1985.

He is the father of four children from his first marriage and the father of three children

in his second marriage. He lost his elder brother in 1978 and has adopted his three

children. He has 20 grandchildren some of his children completed their tertiary

education whilst he was in detention (two children obtained master’s degrees). He

was able to assist them financially with their studies with his pension.

[82] He was arrested on 4 August 1999. At that stage he suffered from diabetes.

He suffered financially. He lost about 500 heads of cattle, and three tractors are in a

state of disrepair. Both parents and a sister had passed away whilst in detention.

His wife is a qualified nurse, is the holder of a Masters Degree and is a Director of

Health in the Zambezi Region. During the time in detention there was a lack of

interaction with his children and grandchildren. The accused suffers from diabetes

mellitus, chronic kidney failure and hypertension and is being treated on the kidney

dialyses machine thrice per week. The accused requires a strict diet to ensure his

well-being. The accused suffered “seizures” and was admitted and kept at the ICU at

the Roman Catholic Hospital from 13 October 2014 until 14 November 2014.

[83] The accused, through his legal representative, expressed remorse for what

had happened on 2 August 1999, but stated that he did not participate in the actions

which caused the loss the of life. The accused asked for leniency. The accused is

60 years old. It is common cause that the accused was severely assaulted by

members of the Namibian Police Force after his arrest on 4 August 1999.

[84] In respect of the involvement of this accused in the attempt to secede the

Caprivi Region from the rest of Namibia this Court found: That he attended and

addressed various meetings at which the topic of secession by violent means were

discussed. This accused was also present when Muyongo addressed meetings on

the same topic. He was one of the leaders at the movement to secede the Caprivi

Region and actively propagated the secession of the region.

[85] The accused was a member of the UDP, the party who established the CLA

as its military wing. After Muyongo had fled to Botswana during October 1998, the

32

accused admittedly attempted to revive the UDP. The accused was at one stage an

office bearer of the UDP.

[86] It was submitted by Mr July that the accused as a member of Parliament had

taken the oath to uphold and defend the Constitution of the Republic of Namibia, and

through his subsequent conduct dismally failed to live by this oath. His conduct in

this regard was morally reprehensible.

Clients of Mr Nyoni

Oscar Muyuka Kushalula Puteho – Accused No. 49

[87] This accused was convicted of contravening provisions of the Immigration

Act. The accused was married and the father of seven children, one of who had

passed away during 2003 whilst he was in detention. He had two wives. One wife

passed away in 2005. The other wife subsequently remarried. The accused passed

standard 5 and was a member of SWATF until 1989. He was arrested on 2

November 1999. He suffers from diabetes and has a kidney ailment.

Osbert Mwenyi Likanyi – Accused No. 57

[88] This accused did not testify in mitigation of sentence. He is 56 years old. He

passed standard 8. He was arrested on 6 December 2002. His wife passed away in

2004. He is the father of four children. The first child was born in 1985 and the last

child in 1997. The younger of the two children completed Grade 12. The accused

struggled to maintain his children whilst he was in custody by making “plastic

carriers” and used the money to pay for school fees. His sister who looked after the

children passed away whilst he was in custody. The accused suffers from high

blood pressure. Prior to independence he was a police officer, but retired during

1987. Thereafter he made a living as a peasant farmer. He was assaulted by the

Security Forces after his arrest.

[89] The involvement of the accused in the attempt to secede the Caprivi Region

as found by the Court is the following: The accused was at Makanga in preparation

for the attack on 2 August 1999. This Court found as follows:

‘I have indicated that the evidence that he was part of the group of 92 was never

challenged and must be accepted as uncontroverted evidence. The evidence of Nuwe

33

supports the evidence of Mbulungu about an excursion in the bush with the accused and

their attempts to evade the security forces. Further support that the accused was actively

involved in the attempt to secede the Caprivi is to be found in Exhibit EGO 2 . . .’

[90] The accused was part of a group which had the aim of launching a second

attack in the Caprivi Region. The role the accused played in the attempt to secede

the Caprivi Region was that of an attacker or soldier.

The clients of Mr Kachacka

Rodwell Sihela Mwanabwe – Accused No. 30

[91] This accused did not testify in mitigation of sentence. The accused is 43

years old. He was arrested on 10 August 1999. He was unmarried. He passed

standard 5 (Grade 7). His mother is 76 years old. Prior to his arrest he assisted his

mother by ploughing the fields. He was one of 13 children of whom 5 had passed

away during the time he had been in detention. His father died in 1986. His health

has been negatively affected during the time of his incarceration.

[92] In respect of the involvement of this accused in the attempt to secede the

Caprivi Region this Court found as follows:

‘This Court also accepts the evidence of George Sizuka (in the absence of any

serious dispute) to the effect that the accused tried to recruit him to participate in the attempt

to secede the Caprivi Region. I am satisfied that the evidence presented by the State proves

beyond reasonable doubt that the accused was one of the conspirators in an attempt to

secede the Caprivi Region from Namibia by violent means, that he participated in the attack .

. .’

[93] The role of the accused was that of an attacker or soldier.

Albert Sekeni Mangalazi – Accused No. 55

[94] This accused did not testify in mitigation of sentence. He is 53 years old. He

was arrested on 18 July 2002. He was married and the father of two children. He

lost his wife during the period of incarceration. His daughter dropped out of school in

2009 due to lack of parental guidance. He was the breadwinner in the family. One

34

brother and two sisters died whilst he was in custody. He lost all 10 of his cattle.

The accused did not have much formal education.

[95] This Court found that the accused was part of the group of 92 who fled to

Botswana after the death of Victor Falali. This group crossed the river Chobe with

weapons of war. The accused was found after his arrest to be in possession of two

AK 47 magazines with 60 rounds of live ammunition. The accused was part of a

group of men at Sachona, one of the rebel bases, prior to the attack on 2 August

1999. The accused fulfilled the role of a soldier.

Fabian Thomas Simiyasa – Accused No. 96

[96] This accused did not testify in mitigation of sentence. The accused is 54

years old. He was arrested on 16 August 1999. He was employed by the Ministry of

Agriculture, Rural and Water Supplies since 1981 as a senior handyman. He is

married and the father of five children and has two grandchildren. His first wife

passed away in 1994. Four of his children dropped out of school in Grade 12 and in

Grade 10 because of lack of financial support. He remarried in 1997, and became

the father of two more children. His wife divorced him on 8 January 2003. He has

three younger married sisters who are unemployed and who are not supported by

their husbands and he must assist in supporting them. He lost his cattle due to his

incarceration. He suffers from a terminal decease.

[97] This Court found that the accused prior to the attack on 2 August 1999

brought food to members of the CLA at Kalumba rebel camp. This accused was

also found to be the driver of TATA truck which belongs to the Government of

Namibia and which was used on 1 August 1999 to transport rebels to Makanga in

preparation for the attacks from Makanga to pre-determined targets earmarked for

attacks by the rebels. He was the main logistics provider.

[98] The role of this accused in the attempt to secede the Caprivi Region was that

of an active supporter.

35

Kester Silemu Kabunga – accused no 102

[99] This accused did not testify in mitigation of sentence. The accused is 59 years

old. He was arrested on 23 August 1999. He is the father of five children. The eldest

one is 32 years old and the youngest child 23 years. He has five grandchildren. He

lost a brother who was the father of 10 children and these children are looking at his

family for support. Five of these children are employed, two dropped out of school,

one has enrolled at UNAM.

[100] This court found35 that the evidence adduced by the State overwhelmingly

prove that the accused was actively involved in transporting a large number of

individuals to cross illegally into Botswana and that he made his vehicle (Toyota

Hilux bakkie) available to transport rebels from Makanga on the evening prior to the

attacks. He was therefore, like Fabian Simiyosa, an active supporter and a provider

of the necessary logistics in order to achieve their aim of seceding the Caprivi

Region.

The clients of Mr Muluti

Raphael Lyazwila Lifumbela – accused no 6

[101] This accused did not testify in mitigation of sentence. He is 56 years old. The

accused is married. His wife is unemployed. He is the father of four minor children.

The accused attended school up to Grade 12. He was employed by the Ministry of

Agriculture. He was arrested on 2nd August 1999. During his arrest he was severely

assaulted and thereafter kept in solitary confinement at Grootfontein Military Base for

three weeks. As a result of the assault his right ear drum was damaged. Both his

parents are deceased. He was the sole breadwinner of his family. His detention has

caused severe financial difficulties for his family. His children struggled to complete

school due to financial constraints and lack of parental support.

[102] In respect of the involvement of this accused regarding the attempted

secession of the Caprivi Region, this court found that the accused was one of the 35 Para 697.

36

four rebels arrested inside Mpacha military base on 2nd August 1999, shortly after the

attack on the base. The accused was one of the attackers or solders on 2nd August

1999 of Mpacha military base.

John Sikundeko Samboma – accused no 54

[103] This accused did not testify in mitigation of sentence. He is 59 years old. He is

married. His wife originates from Zambia. The accused attended school up to Grade

12 in Zambia. He is the father of four children of whom two are still minors. The

children experienced difficulties in completing school due to financial constraints and

lack of parental guidance. The accused was arrested on 2 November 1999 at

Simjembela in Zambia and was thereafter heavily assaulted. After his arrest he was

kept in solitary confinement for six months in Grootfontein military base.

[104] The accused suffers from high blood pressure and he developed diabetes

whilst in detention. He needs constant medication. Whilst in detention he lost his

brothers, sisters and his father. His father died in June 2012. His mother is a very old

and frail woman who depended upon him for support. He was a communal farmer.

The accused was also an evangelist or lay preacher.

[105] In respect of the involvement of the accused in the attempt to secede the

Caprivi Region, this court found that the accused was instrumental in obtaining

weapons of war with the aim to secede the Caprivi Region. He was the commander

of the CLA and played a leading role in the propagation and execution of the

secessionist idea. He was the leader of the group of Sachona and at Libulibu from

which group Victor Falali escaped and was subsequently killed. The accused was

the leader of the group of 92 who crossed into Botswana with weapons of war. The

accused was not personally involved in the attack on 2nd August 1999.

[106] It was submitted by Mr July that it was this accused who gave the order that

Victor Falali be killed. It was further submitted that the accused was said to be a man

of God, yet his involvement in the secession activities paints a glaringly different

image one would expect a man of God to portray. I agree with the submission that

37

the accused had an unwavering commitment to the military objective of the CLA and

that he was prepared to kill and maime for the cause.

The clients of Mr McNally

Matheus Munali Pangula – accused no 59

[107] This accused did not testify in mitigation of sentence. He is 53 years old. The

accused left secondary school when he was in Grade 10. He was employed as an

auto electrician from 1984 until 1988. He joined the Namibian Police Force in May

1998 and was so employed until his arrest on 2 August 1999. He is the father of six

children. The first child was born in October 1988 and the last one born in

September 1997. His eldest child is employed and supports the rest of his siblings.

He was suspended from the Namibian Police Force and did not receive a pension

neither did he receive a salary. He is a first offender. His children live in the village

with his 89 year old mother. She receives a pension. His family members make a

living by tilling the land. He completed his Grade 12 whilst in detention and thereafter

obtained a degree in Bible Studies. The accused is suffering from high blood

pressure.

[108] In respect of the involvement of the accused person in treasonous activities,

the court found that the accused attended meetings where the topic of discussion

was the secession of the Caprivi region. This accused was in the company of a

group of armed rebels during the evening of the attack near Katima Mulilo police

station. The accused offloaded some of the rebels at the NBC with a vehicle

belonging to someone else. The NBC was also attacked that evening, so was the

Police Station. The accused failed to report on duty the morning of 2 August 1999.

The accused was aware that he was transporting rebels. He returned home that

evening instead of alerting his colleagues of an imminent attack.

[109] In respect of the involvement of the accused in the attempted secession his

role can be described as that of an active supporter and one who transported rebels

to targets of attack.

Bernard Maungolo Jojo – accused no 98

38

[110] The accused did not testify in mitigation of sentence. He is 74 years old. He is

married and the father of 15 children of whom 14 children dropped out of school after

his arrest on 5 August 1999. The accused suffers high blood pressure, gout and

experience kidney “problems”. After his arrest he lost all his livestock. His last born

child was born one month after his arrest and he has seen her only once. He is a first

offender. He was the only breadwinner. His eldest son died in 2007. At the time of

his arrest he was employed as a senior driver at the Ministry of Regional and Local

Government.

[111] In respect of the involvement of this accused in the cause to the secessionist

this court found that he attended meetings where the issue of secession was

discussed. The accused furthermore personally transported a number of individuals

to the border with Botswana in order to advance the idea of seceeding the Caprivi

from Namibia by violence. This accused was a supporter in respect of secessionist

activities in the Caprivi region.

Richard Simataa Mundia – accused no 104

[112] This accused did not testify in mitigation of sentence. He was arrested on 26

August 1999. He is 61 years old. He is married and the father of 12 children. The first

child was born in January 1979 and the last one in the year 2000. He was the only

breadwinner until the day of his arrest. All his children dropped out of school due to

financial constraints and due to his absence. The accused suffers from high blood

pressure and diabetes. He left Namibia for Zambia in 1975 when he was in Standard

6 and received training as a mechanic in Lusaka. He was one of six mechanics who

repaired vehicles which belonged to SWAPO. In 1981 he was employed as a

labourer by the Government and in 1982 he was appointed as a driver in the Ministry

of Education and was so employed until his arrest. He earned a salary of N$ 2175.00

p.m. The accused suffers from diabetes and high blood pressure.

[113] The involvement of this accused in the attempt to secede the Caprivi region

was that he influenced people to go to Botswana in pursuance of a conspiracy to

secede the Caprivi from Namibia. The accused himself transported individuals to the

39

Namibian/Botswana border in pursuance of this conspiracy. The accused further

informed individuals prior to the attack, that the Caprivi would be “cut’. The accused

had telephone numbers of Mishake Muyongo in his diary. The accused never

informed the relevant authorities about plans afoot to secede the Caprivi region. The

role of the accused in the secessionist activities can be described as that of an active

supporter.

Alfred Tawana Matengu – accused no 79

[114] This accused did not testify in mitigation of sentence. He was born on 20

April 1949 and is 66 years old. He is married. He attended school in the early 1960’s

and left school in Standard 6. He was arrested on 4 August 1999. At the time of his

arrest, he was employed at the Katima Mulilo town council and earned a salary of

N$6000,00 per month. The accused is the father of 19 children from different

mothers. His own mother passed away in 2004 when he was in detention as well as

his father and his brother. He developed diabetes whilst in detention. Upon his arrest

he was the owner of 110 heads of cattle all of which he had lost all whilst in

detention.

[115] The involvement of the accused in respect of the attempt to secede the

Caprivi region. The accused attended meetings at which the issue of secession was

discussed. The accused was the Vice-President of the UDP, the party who

established the CLA as its fighting wing. The accused was aware of the aims of the

CLA and he failed to inform the authorities about it. The accused was second in

command of the UDP.

George Kasanga – accused no 77

[116] This accused did not testify in mitigation of sentence. The accused is 67 years

old. His wife died in 2013 whilst he was in detention. He is the father of seven

children. He was arrested on 5 August 1999 and at that time he was employed at

Ramdel Construction as an operator. He earned a salary of N$9,00 per hour. The

accused had undergone back surgery on 10 February 2015. He is constantly in paid

and is compelled to walk with crutches.

40

[117] The accused never attended school. When young he was a cattle herder. He

qualified as an operator of heavy machinery in 1987. He also assisted in the

ploughing of fields. Upon his arrest he had 10 cattle which he sold in order to cover

legal expenses. He is not in a position to work any longer. This accused was

convicted of unlawfully leaving Namibia.

Victor Masiye Matengu – accused no. 60

[118] This accused did not testify in mitigation of sentence. He was arrested on 2

August 1999. He was born on 24 June 1968 and is 47 years old. He attended

school up to Form 2. He was married but his wife deserted him three years after his

arrest. His father is 73 years old and his mother 70 years. He has four siblings. He

is the father of eight children from different women of whom three are majors. He

has four grandchildren. All the children stay with his mother who supports them with

her pension. When his wife deserted him who took all his belongings. When he was

arrested he had 33 head of cattle, all lost now. He is suffering from high blood

pressure. He was an ‘informal businessman’ and earned N$7000.00 per month.

[119] In respect of his participation in the attempt to secede the Caprivi Region this

Court found at par. 394 ‘that the accused had at the very least known about

treasonous activities an failed to report same to the authorities at the time when any

law abiding citizen would have done so’.

The clients of Ms Aggenbach

Postrick Mowa Mwinga – accused no 23

[120] This accused did not testify in mitigation of sentence. He is 60 years old. He

attended school until Standard 8 (Grade 10). He joined the South African Police

Force in the Caprivi in 1979. From 1994 he was an instructor at Houmoed Police

College. In 1996 he was transferred to Walvis Bay Police College where he

instructed ex-combatants in the methods of investigation. He returned to Katima

Mulilo in 1998 where he was not allowed to work because it was alleged that he is

41

related to Muyongo. He thereafter stayed at his village. He married on 14 March

1974. His wife divorced him in 2005. He is the father of six children. He has five

grandchildren. He fled to Dukwe Regugee camp in March 1999. He returned from

Botswana on 26 September 1999 because he was informed that the Security Forces

would kill his family should he not return. On his return he discovered his sisters had

been assaulted by members of the Police Force and members of the Security

Forces. His mother was also assaulted. Six of his family members passed away

whilst he was in detention. He himself was also assaulted upon his return.

[121] The involvement of the accused in the attempt to secede the Caprivi was that

he was one of the group of 92 who fled to Botswana with weapons of war. After the

attack on 2 August 1999 the accused encouraged his co-rebels over the radio (NBC)

who were still in the bush to report themselves to members of the Namibian Police

Force. The accused can be described as a soldier.

John Pause Lubilo – accused no 50

[122] This accused did not testify in mitigation of sentence. He is 63 years old. He is

illiterate. He was born in Sakubi area and never travelled to the rest of Namibia prior

to 5 September 1999. He was never employed. He earned a living as a subsistent

farmer. He speaks only the Totela language. He is a traditional leader. Before his

arrest he was an induna and an induna of the traditional Khuta. He was married to

three women. Two of his wives died whilst he was in detention. He is the father of

seven children. He has 17 grandchildren. He was arrested on 30 August 1999 at

Namutengu village in the Caprivi region and was assaulted by members of the

Namibian Police Force. He had fled to Botswana due to harassment by the security

forces. On 13 June 1999 he returned to Namibia by way of voluntary repatriation. He

is a man of peace.

[123] The involvement of the accused in the attempt to secede the Caprivi region

was that he was one of the rebels who had attacked Mpacha military base and was

during the attack wounded on his big toe. The accused can therefore be described

as an attacker.

Chris Puisano Ntaba – accused no. 7

42

[124] This accused testified in mitigation of sentence. He testified that he was born

on 6 May 1975 in Makanga area in the Caprivi Region and is 40 years old. He

completed Grade 12 in 1995. After the completion of Grade 12 he stayed at the

village. Due to lack of financial assistance he could not further his studies. He has

two brothers and two sisters who are all unemployed. His mother is 85 years old. He

was 24 years old when he was arrested and was unmarried. He has no children.

He was arrested on 2 August 1999 at Lambayi location in Katima Mulilo and taken to

Mpacha military base where he was assaulted with a sjambok by members of the

NDF. He received no food and water and the next day was transported to

Grootfontein military base where he was thrown in a single cell and interrogated. On

22 August 1999 he was taken to court for the first time.

[125] On 11 November 1998 he went to Botswana due to harassment by security

forces. He returned to Namibia through the process of repatriation. He testified that

his legal practitioner withdrew in 2005 because he gave instructions to challenge the

jurisdiction of the Namibian Government over the Caprivi Region. The accused

testified that he gave such instructions because he believes that the Caprivi is not

part of Namibia and the Government of Namibia is illegally in the Caprivi Region.

The accused testified as follows:36

‘My history tells me so and Proclamation 101 of 1985 for South West Africa that

forms the Government of National Unity was made not applicable to the Caprivi, my Lord,

and Act 10 of 1999 titled, ‘The application of laws to the Eastern Caprivi Zipfel”, shows me

that the Namibia Government knows that Caprivi is not part of Namibia, My Lord, and

colonial boundaries, My Lord, remains valid even when a country gets its independence.

South West Africa starts on 21 degrees westwards and from 21 degrees eastwards is

Caprivi, My Lord, and this Court is not a Court of politics. So treason is committed within the

boundaries of a country, if it happens beyond that is not treason, My Lord.’

[126] The accused testified that he was not a member of any political party and that

his priority if he gets home is to get his family together and get married. During

cross-examination by Mr July the accused testified that he did not participate in the

36 P 40843 of record.

43

trial because he does not recognize the jurisdiction of this Court over himself. The

accused denied that he has not remorse. He testified that he is a Caprivian and a

Namibian ‘by force’. The witness testified that the Chris Ntaba who was arrested on

the morning of 2 August 1999 was not him.

[127] The accused was ambivalent when asked whether he agreed with the views

Muyongo expressed during an interview shortly after the attack on 2 August 1999,

and Muyongo’s views expressed in a statement dated August 2015. In this regard

the accused first stated that he does not agree with the sentiments expressed by

Muyongo, but that he agrees that the ‘fallen heroes and heroines’ deserved to be

remembered for their contribution and sacrifice so that they (i.e. those left behind)

could live and see the next day and fought ahead in their journey to conquer the

enemy.

[128] He agreed that ‘Swapo’s occupation of the Caprivi Strip shall soon come to an

end and it is just a matter of time, nonetheless we shall never waiver in our quest for

freedom’. The accused agreed with the following said by Muyongo:

‘We are our own liberators, the struggle continues and thus Caprivians should never

loose hope because there is light at the end of the tunnel.’

[129] When it was put to him that Muyongo believes that the attacks on Caprivi on 2

August 1999 was justified and what his comment was, the accused stated that he

had no comment. The accused however testified that he does not believe in

violence. When asked whether he has ‘any regrets for being involved in this case’,

the accused replied that he was not involved. In respect of the involvement of this

accused in the attempt to secede the Caprivi Region this Court found that the

accused was one of the four rebels captured on the morning of 2 August 1999 inside

Mpacha military base. He was one of the attackers.

Saviour Ndala Tutalife – accused no. 24

44

[130] This accused testified in mitigation of sentence. The accused was born on 8

August 1964. At the time of his arrest on 9 August 1999, he was married. His wife

divorced him whilst he was in detention. He is the father of three daughters of whom

the eldest is 28 years and the youngest 19 years old. He has five grandchildren, all

born whilst he was in detention. He received visits only from the youngest daughter.

After his return from Botswana his brother handed him over to the Khuta. He was

taken to Katima Mulilo Police station by a member of the Special Field Force where

he was subsequently beaten with a sjambok and also tortured. The accused testified

how he was transferred from one detention centre to another until he eventually

found himself at Houmoed Police College. Here in an effort to persuade him to

become an state witness the late Chief Inspector Abraham Maasdorp and Sergeant

Popyenama executed 10 San individuals with a 9mm pistol.

[131] The accused advanced up to Grade 12. He was at the some stage employed

at Santila in the Caprivi region as a horse rider and tour guide. The accused left for

Botswana due to harassment during September/October 1998 by members of NDF.

The accused testified that he was never a member of a political party and was never

involved in politics. He was 35 years old when arrested. He is now 51 years old. He

does not believe in violence. He testified that he wants the Caprivi region to become

independent, that an agreement was signed on 5 November 1964 between Muyongo

and Dr Sam Nujoma about a “merger”, that they are people who want self-

determination like other nations; that Caprivi is a territory on its own.

[132] During cross-examination by Mr July, the accused was asked what the

purpose was of him testifying, to which the accused replied: ‘I decided to put the

case of Caprivi in the face of this Honourable Court, from the beginning no one was

allowed . . . to challenge the jurisdiction of the Namibian Government over

Caprivi . . . that is why I decided I should go and take a stand and testify . . .’ 37 When

it was put to the accused that 70 – 80 % of the testimony he gave did not come close

to be considered as mitigation factors the accused replied that that is for this court to

decide – he wanted to place before the court the ‘true historical picture of the

Caprivi . . .’38

37 Page 40931 of the record.38 Page 40931 of the record.

45

[133] The accused agreed that he and 31 other accused persons at one stage

deliberately absented themselves from the court proceedings. The accused testified

that he disagrees with the view expressed by Muyongo during the interview shortly

after the attack. The accused testified that he has no remorse for he did nothing

wrong. The accused denied that he was deployed to attack Katonyana Special Field

Force Base on 2 August 1999. The accused denied that he was at Makanga on the

evening prior to the attack. He denied that he was one of the attackers.

[134] The accused testified that history shows that Caprivi region is not part of

Namibia and that only a referendum can solve the dispute between the Caprivian

people and the Namibian people. The accused denied that he is in court, because of

the attack on the Caprivi region on 2 August 1999 where he and others tried to

change the constitutional order of Namibia by violent means.

[135] The accused testified that he was not convicted of launching a war on the

State of Namibia, but convicted of his belief and was prepared to ‘cut off’ his head

because of his belief. In respect of the involvement of the accused in the attempt to

secede the Caprivi region this accused admitted to his brother that he joined the

CLA, that he was at Katounyana during the attack and that he managed to escape

from Katounyana. An AK 47 rifle, a magazine, a camouflaged brown cloth and a rug

was found in the courtyard of this accused person.

[136] The accused was an attacker of the Katounyana Special Field Force base. He

was a soldier in the CLA.

Martin Siano Tubaundule –accused no 71

[137] This witness testified in mitigation of sentence. The accused is 58 years old.

He is married and the father of six children. He has three grandchildren who he used

to see when they visited him in prison. The accused is the holder of Secondary

Education Diploma from Vista University in South Africa and the holder of a Diploma

in Managing Tourism through Southern Business School in South Africa.

46

[138] He was a teacher by profession. Prior to his arrest he was the Principle at

Nyashuru Primary School (since 1996). Prior to this he was appointed at various

schools in the region in the capacity of teacher and principal. The accused testified

that in his village 14 people passed away whilst he was in custody, only his ‘little

father’ of 97 years is left. He testified that he was not involved in politics. He left for

Botswana on 16 December 1998 because of harassment by members of the security

forces. He drove with his vehicle and subsequently met Mishake Muyongo at

Kagison Centre near Gaberone thereafter he, together with others left for Zambia

during June 1999. He was in the company of Thaddeus Ndala, Steven Mamili, Oscar

Putheo, Charles Mushakwa and the late Moses Mushwena. On 7 August 1999 they

were handed over to the Namibian Police by the Zambian Police Force members.

The accused narrated in detail subsequent events. He testified that he is a

Caprivian.

[139] During cross-examination by Mr July, the accused testified that he accepts his

convictions, but does not agree with those convictions. The accused was confronted

with minutes of a UDP meeting in Botswana where he was present which resolved to

attack Katima Mulilo in order to achieve a political objective. The accused stated

repeatedly that he was not going to answer the questions and intimated an appeal to

the Supreme Court. The accused was confronted with another document (Ex EGJ 1)

of which he was the author indicating that on 16 th December 1998 he left the Caprivi

to join the armed struggle and to join the Caprivi Liberation Army. The accused

refused to answer the question. The accused testified that the Caprivi region is not

part of Namibia. The accused was confronted with a picture on which he is depicted

holding the flag of UDP, he replied that he had not previously seen the flag.

[140] It was put to the accused that he was unrepentant for trying to secede the

Caprivi Region. The accused replied that Caprivi is not part of Namibia and he is not

unrepentant. In reply to a statement put to the accused that he and others in the

meetings and those who executed their resolution have blood on their hands, the

accused stated that he was in Luzaka, Zamibia, about 1500 km away.

[141] In respect of the involvement of this accused in the attempt to secede the

Caprivi from the rest of Namibia the undisputed evidence was that the accused

47

transported individuals to the Namibia / Botswana border in a motor vehicle, he

attended a meeting addressed by Mishake Muyongo where Muyongo announced

that he had resigned from Parliament and that he was going to form his ‘own army

for Caprivi’. In one of his diaries the accused clearly propagated the fight for the

independence of Caprivi and that the ‘key for the struggle is the armed struggle.’ The

accused can be described as a very active supporter.

Thaddeus Siyoka Ndala, Accused No.70

[142] This accused testified in mitigation sentence. He was born on 3 February

1959. He is married and the father of four children. He has six grandchildren. The

grandchildren were born whilst he was in detention. His mother died in 1976 and his

father in 2004 whilst he was in detention in Grootfontein Prison. His grandmother

died in February 1999 whilst he was in Botswana. His brother also passed away.

The accused described himself as a ‘very poor peasant farmer’. He attended

secondary school but did not complete Grade 12, only Grade 11.

[143] He fled to Botswana because of threats by the Security Police of Namibia.

These threats related to an enquiry made by himself to the then Prime Minister of

Namibia, the Honourable Hage Geingob about R 36 million donated by the South

African Government. The accused confirmed that he was with accused person

Tubaundule at Kagison Centre and from there left for Zambia. He testified that he is

not a violent man and that he wants a solution in a peaceful manner.

[144] During cross-examination when it was put to him that the Steven Mamili group

of which he was part of in Zambia constituted the leadership of the UDP the accused

replied that it was not offence to be a member of a party. The accused testified, in

response to a question whether he recognised this Court’s authority over the

Zambezi Region that he believes that his country is oppressed by the Namibian

Government. The accused admitted that he is a member of the UDP.

[145] To the question whether he agrees with the sentiments expressed by

Muyongo in the interview after the attack, the accused evaded the question on a

number of occasions. The accused in reply to a question whether he had been

appointed as the commander of the CLA by Mishake Muyongo answered:

48

‘That will be dealt with at the Supreme Court, at the appeal.’

[146] When it was stated that he was present at a meeting held at Kagison

(Botswana) where certain resolutions were taken, the accused replied that it was an

issue for the Supreme Court. In reply to a statement that the accused and others

who were at the meeting on 1 January 1999 have blood on their hands for the

deaths caused by the CLA on 2 August 1999, the accused replied that Mr July was

committing a very serious sin before God because he is putting things, crimes, that

the accused has never done. The accused testified that should the appeal to the

Supreme Court of Namibia be unsuccessful they would take the matter to the

International Court of Justice (ICJ).

[147] In respect of the involvement of this accused in the attempt to secede the

Caprivi Region this Court found that he accused provided food to the rebels at rebel

camps which makes the accused a supporter. The accused was one of the

individuals who fled with Muyongo on 28 October 1999 from Namibia to Botswana.

[148] The accused was present at a meeting on 1 January 1999 at Kagison where

the UDP amongst others resolved that the year 1999 should be a year of action and

where an armed struggle was confirmed as the means of achieving their aim,

namely, to secede the Caprivi Region through violence. In this regard the accused

also fulfilled the role of a leader.

The interests of society

[149] The interests of society may, depending on the circumstances, mitigate a

sentence and may also aggravate a sentence, in the latter instance e.g. when

society needs to be protected against a convicted person. The interests of the

society (of community) refers to the ‘natural indignation’39 of members of the

community in respect of the commission of a specific crime and their expectations in

respect of the sentence, and it also refers to the fact that the sentence imposed

should serve society through the aims of punishment, namely prevention,

deterrence, rehabilitation and retribution. In Karg, Schreiner JA cautioned that

39 R v Karg 1961(1) SA 231 (A) at 236A-C.

49

‘righteous anger should not becloud judgment’. The challenge is to impose an

appropriate sentence, one which is not too lenient and not too severe.

[150] In S v Ngunovandu40 this Court stated the following:

‘The Court has to determine what an appropriate sentence is for the accused. In

assessing this, it has to reconcile the often competing interests of the accused and of the

community. It has to evaluate the gravity of the offence and ensure that the sanction it

imposes speaks of abhorrence of the crime but is not so harsh as to unfairly penalize and

destroy the offender.’

[151] In respect of the determination who the community is the following was said in

S v De Kock41 by Van der Merwe J:

‘In considering the interests and feelings of the community, the Court held that it was

necessary firstly to establish who the community was. Different groups within society

differed sharply in their views of the accused’s actions and of the sentences to be imposed.

However, the views of society could not be sought in those who stood at its extremes. It was

necessary to consider the views of the informed, reasonable, law abiding and balanced

members of the community, who would be prepared to take into account all the factors

relevant to the imposition of an appropriate sentence. Such people respected the courts,

expected the courts to view crime with due seriousness and to make their lives safe and

peaceful, so that they could live together in harmony. It was the mouthpiece of this part of

the community that the Court was required to impose a suitable sentence.’

[152] Harms JA in S v Mhlakaza and others42 stated that the ‘object of sentencing is

not to satisfy public opinion but to serve public interest’ and cautioned that a

‘sentencing policy that caters predominantly or exclusively for public opinion is

inherently flawed. It remains the court’s duty to impose fearlessly an appropriate and

fair sentence even if the sentence does not satisfy the public’.

[153] And continued at 519 d as follows:

40 1996 NR 306 at 318 E-F per Steyn J.41 1997(2) SACR 171 (TPD) at 179 g-j.42 2009(1) SACR 552 (SCA) at 574 par [58].

50

‘Given the current levels of violence and serious crimes in the country, it seems

proper that, in sentencing especially such crimes, the emphasis should be on retribution and

deterrence.’

[154] In view of the particular circumstances of this case I am of the view that this is

the appropriate approach to be adopted, namely to emphasize retribution and

deterrence. Harms JA said in S v Vilakazi43 regarding the factor of personal

circumstances of an accused where the accused has been convicted of a serious

offence:

‘ln cases of serious crime the personal circumstances of the offender, by themselves

will necessarily recede into the background. Once it becomes clear that the crime is

deserving of a substantial period of imprisonment the questions whether the accused is

married or single, whether he has two or three children, whether or not he is in employment,

are in themselves largely immaterial to what that period should be and those seem to me the

kind of “flimsy” grounds that Malgas said should be avoided. But they are nonetheless

relevant in another aspect. A material consideration is whether the accused can be expected

to offend again. While that can never be confidently predicted his or her circumstances

might assist in making at least some assessment.’

[155] Remorse or lack thereof is a factor that is considered, together with other

factors mentioned supra, prior to imposing a particular sentence upon an accused

person. Van Niekerk J endorsed what was said in S v Seegers44 in respect of

remorse with which I fully agree:45

‘Remorse as an indication that the offence will not be committed again is, obviously

an important consideration in suitable cases, when the deterrent effect of a sentence on the

accused is adjudicated. But in order to be a valid consideration pentinence must be sincere

and the accused must take the court fully into his confidence. Unless that happens the

genuineness of the contrition alleged to exist cannot be determined.”

[156] In S v Mushisi46 Liebenberg J stated:

43 2009(1)44 S v Ganes 2005 NR 472 (HC) at 48145 1970 (2) SA 506 (A) at 511 G46 2010 (2) NR 509 (HC) par 7.

51

‘While I do not doubt that the accused at this stage does have feelings of remorse,

this factor unfortunately loses some of its weight due to his unwillingness to accept legal and

moral responsibility for his misdeeds.’

[157] The determination of whether an accused is sincerely remorseful and not

simply feels sorry for himself is a factual one often determined from the actions of the

accused rather than what is said in court.

[158] I shall later deal with this aspect in respect of the accused persons before

court.

[159] The accused persons were convicted of several offences and must be

sentenced in respect of each such offence. Some defence counsel urged this court

to impose a ‘globular’ sentence i.e. to take the counts together for purpose of

sentence. This is usually done in order to ameliorate the cumulative effect of

sentences imposed for multiple convictions.

[160] In S v Visagie47 this court said the following:

‘I support the view that such a practice (for the reason given supra) is undesirable,

and endorse the idea that imposing separate punishments for separate offences conduces

to clearer thinking in determining an appropriate sentence. The cumulative effect of

sentences may be ameliorated by ordering the running together of sentences or part of

sentences.’48

[161] I have indicated (supra) that in respect of the participation of the accused

persons in the attempt to secede the Caprivi Region from the rest of Namibia, that

they fulfilled different roles. There are accused persons who committed the crime of

high treason by being aware of treasonous activities but failed to report same to the

relevant authorities, some accused persons were supporters, some were the soldiers

or attackers, and some fulfilled the roles as leaders. In my view, because of their

diverse roles, their respective moral blameworthiness would broadly accordingly also

differ.

47 2010 (1) NR 271 (HC) at par 8.48 See also S v Tjikotoke 2014(1) NR 38 (HC).

52

[162] Victor Masiye Matengu and Alfred Lupalezwi Siyata found to have known

about treasons activities and failed to report same to the relevant authorities. The

following accused persons were found to be active supporters:

Bollen Mwilima Mwilima

Charles Nyambe Mainga

Mathews Muyandulwa Sasele

Fabian Thomas Simiyasa

Kester Silemu Kabunga

Mathews Mundi Pangula

Bernard Maungolo Jojo

Richard Simataa Mundia

Martin Siano Tubaundule

[163] The following accused persons were found to be soldiers on attackers:

Aggrey Kayabu Makendano

Moses Chicho Kayoka

Richard Libano Misuha

Charles Mafenyeko Mushakwa

Chika Adour Mutalife

Kingsley Mwiya Musheba

Osbert Mwenyi Likanyi

Rodwell Sihela Mwanabwe

Albert Sekeni Mangalazi

Rafael Lyazwila Lifumbela

Postrick Mowa Mwinga

John Pause Lubilo

Chris Puisano Ntaba

Saviour Ndala Tutalife

[164] The following accused persons were found to be in leadership positions:

Bennet Kacenge Mutuso

53

Geoffrey Kupuzo Mwilima

John Sikundeko Samboma

Alfred Tawana Matengu

Thaddeus Siyoka Ndala

[165] There are three accused persons with previous convictions (not relevant for

this matter) and for the purpose of this case all the accused persons are regarded as

first offenders. Another mitigating factor is that the majority of the accused persons

have been in detention for the past 16 years (some for 13 years). I am not aware of

any criminal trial in the recent history of this, or in neighbouring jurisdictions, where

accused persons had been in custody for such a long period of time awaiting the

conclusion of their trial. It is unprecedented.

[166] An aggravating factor in respect of the crime of high treason is the fact that

eight human beings, all unarmed and defenseless, lost their lives during the attack

on 2 August 1999. Another factor that is taken into account against the accused

person is that not one of them has shown any form of remorse in the sense as

described in Ganes and Mushisi (supra).

[167] The four accused persons who testified in mitigation of sentence instead

attempted to justify their ideology or political views that the Caprivi Region (now

Zambezi Region) does not form part of the territory of the independent Republic of

Namibia and by inference tried to justify the events of 2 August 1999.

[168] This Court was referred to a number of decided cases in other jurisdictions in

respect of sentences imposed for the crime of high treason. There is no similar case

approximating the magnitude of the events which unfolded on 2 August 1999. The

Kleynhans matter decided shortly after the attainment of independence pales in

comparison in respect of the gravity and extent of the criminal endeavour engaged in

by the accused persons in this case.

[169] I cannot find any justification for the crimes of high treason, murder, or

attempted murder committed by the accused persons. The submissions by defence

counsel in order to explain the events on 2 August 1999, include, the marginalization

54

of the inhabitants of the Caprivi Region by the Government of Namibia,

discrimination against the inhabitants of the region, the perceived uncertainty in

respect of the status of the Caprivi Region in the constitutional arrangement, mob

psychology, an alleged agreement between the first President of the Republic of

Namibia, Dr Sam Nujoma and Mishake Muyongo (the so-called Lusaka agreement

of 1964), that the Government of Namibia had been forewarned about an impending

attack but was negligent, in that nothing was done in order to prevent it, and that in

terms of the ‘castle’ principle the events of 2 August 1999 could be justified since the

accused persons being inhabitants of the region (their castle being oppressed, took

appropriate action in order to defend the region against an oppressor, all these

submissions under-emphasized the fact that Mishake Muyongo signed the

Constitution of the Republic of Namibia as president of the DTA and by his signature

endorsed the unitary State embodied in of the Constitution of Namibia to the

exclusion of the so-called Lusaka agreement.

[170] Secondly, it is common cause that there was prior to the attack on 2 August

1999 no public discourse about the possibility of an autonomous Caprivi Region.

There is a point of view that people may legitimately resort to violence in order to

achieve certain political objectives where all peaceful and democratic means have

been exhausted. It did not happen in this case. On the contrary the reverse is true.

Violence was resorted to first and foremost and was used as a deliberate strategy,

preceding possible negotiations.

[171] The State led evidence to the effect that there is an uneasiness in certain

circles of government which has a consequence the fact that a police unit is still

monitoring the situation in the Zambezi Region. It is clear from the testimony of the

four accused persons who testified in mitigation of sentence, at least as far as they

are concerned, that the hope of achieving independence for the region now known

as the Zambezi region has not faded and that every effort would be resorted to in

order to achieve their political objectives.

[172] As discussed hereinbefore in considering an appropriate sentence I

considered the triad enunciated in Zinn. The fact that the accused persons have

been convicted of very serious offences is undisputed and in my view deserving of a

substantial period of imprisonment. In these circumstances as stated in Vilakazi the

55

personal circumstances of the persons will necessarily recede into the background

and the abhorrence of the crimes and interest of society emphasized.

[173] The aims of punishment were considered and as I stated earlier those of

retribution and deterrence would be emphasized in the sentences this Court is about

to impose. I have due regard to the fact that mercy forms an integral part in

considering an appropriate sentence.

[174] In respect of the crimes of murder and attempted murder the form of dolus

namely dolus eventualis is taken into account. In this regard this Court said the

following at par 1111 of the judgment:

‘[1111] The record is permeated with words and phrases used during meetings, in

documents, and during the testimonies of State witnesses namely: ‘cutting the

region’, ‘fire-arms’, ‘weapons of war’, fighting with firearms’, ‘liberation struggle’, ‘secession’,

‘military wing’, ‘army’, ‘CLA/CLM’, and by ‘violent means’. These words and phrases are the

antithesis of the words: negotiation, democratic means and peacefully. In my view, the co-

conspirators, and those who became aware of the aim to secede the Caprivi region by

violent means and failed to report it to the authorities had foreseen that violence would be

inevitable and that it would invariably result in the killing of human beings and associated

themselves with such an eventuality.’

[175] An important mitigating factor to be taken into account is the unprecedented

long period the accused had been detained awaiting finalisation of this trial. The

moral blameworthiness of each accused person will be reflected in the sentences

imposed upon them. In this regard cognizance is being taken of the fact that the

offences were all committed in order to achieve certain political objectives. I have

mentioned the roles each accused person played in the attempt to secede the region

known as the Caprivi region at that stage.

[176] Although a court may be entitled to take various counts together for the

purpose of sentence in certain circumstances and impose one sentence or a

globular sentence, I personally have a preference, and for the reasons mentioned in

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Visagie and Tjikotoke, to shy away from the globular sentences, but shall impose a

punishment in respect of each crime committed by an accused person.

[177] A factor to be considered and not mentioned previously is the age of an

accused person. There is one accused person Chika Adour Mutalife who was 19

years old when he was arrested. Although there is no evidence presented that he

committed the crimes, influenced by much more matured accused persons, the fact

of his youthfulness at that stage should receive some recognition. Similarly, there is

an accused person Bernard Maungolo Jojo before this Court who is presently 74

years old. This accused person was a matured adult at the time of the commission

of the offences, but his age at this stage must be a factor to be taken into account.

[178] This Court takes into account in respect of the crime of high treason that it did

not occur on the spur of the moment but was planned and discussed for years prior

to the eventual attack on 2 August 1999. During this time, the supporters, the

attackers, and the leaders had ample opportunity to reconsider their continued

participation in this common unlawful activities and could have withdrawn from any

future participation. This never happened. It appears to me instead that there was a

dogged determination to achieve their main objective namely to overthrow the

Government of the Republic of Namibia within the then Caprivi Region.

[179] What is a common and disturbing feature heard in evidence during this trial is

the conduct of the Namibian security forces in this aftermath of the attack on 2

August 1999 in respect of which this Court must express its disapproval of in the

strongest possible terms, namely the widespread and indiscriminate use of

excessive force and torture on both potential state witnesses and those suspected to

have been involved in the attacks on 2 August 1999.

[180] In my view there can in a democratic and civilized society, as ours, in which

the rule of law is a primary and fundamental principle governing the lives and

conduct of all members of society, and where it should be manifested especially in

the conduct of our law enforcement agencies, no instances where such acts of extra

curial punishments, can be countenanced which are irreconcilable with the

57

fundamental human rights and freedoms espoused and guaranteed by the Namibia

Constitution.

[181] I shall now deal with the accused persons referred to in this judgment as the

leaders, some of who were political leaders, some military leaders, who in my view,

share the same and high degree of culpability or moral blameworthiness because

the leaders set the tone and lead by example for rank and file to follow.

[182] Geoffrey Mwilima and Alfred Tawana Matengu were in my view the political

leaders (in the absence of Mishake Muyongo), whereas Bennet Mutuso, John

Samboma and Thaddeus Ndala were the military leaders, Samboma being the

commander of the CLA and the sentences to be imposed will reflect their degree of

culpability.

[183] The soldiers or attackers all share a high degree of culpability (though less

than that of the leaders) because without their participation the achievement of the

political objectives would have been an illusion. Then there are the supporters who

actively assisted by providing the necessary logistics to the attackers or soldiers in

their unlawful criminal activities.

[184] There were also some who were aware of treasonous activities but remained

silent, who in my view should be considered as the least morally blameworthy within

the context of the commission of these serious crimes.

Sentence

[185] I am of the view that the following sentences are appropriate sentences

regarding the respective accused persons with due regard to their roles and the

circumstances of this particular case: In respect of (the leaders): Bennet Kacenge

Matuso (accused no 69), Geoffrey Kupuzo Mwilima (accused no. 68), John

Sikundeko Samboma (accused no. 54), Alfred Tawana Matengu (accused no. 79),

and Thaddeus Siyoka Ndala (accused no. 70) for their conviction in respect of the

crime of high treason each accused is sentenced to a period of 35 years

imprisonment of which a period of 17 years imprisonment if suspended for 5 years

58

on condition the accused is not convicted of the crime of high treason committed

during the period of suspension.

[186] In respect of each count of murder, each accused is sentenced to 30 years

imprisonment of which a period of 12 years imprisonment is suspended for a period

of 5 years on condition that the accused is not convicted of the crime of murder

committed during the period of suspension. In respect of each of the counts of

attempted murder each accused is sentenced to 10 years imprisonment.

[187] This Court orders that the unsuspended periods of imprisonment imposed in

respect of the murder counts and the periods of imprisonment imposed in respect of

the attempted murder counts should run concurrently with the unsuspended period

of imprisonment imposed in respect of the count of high treason.

[188] In respect of: (the attackers/soldiers)

Aggrey Kayabu Makendano

Moses Chicho Kayoka

Richard Libano Misuha

Charles Mafenyeko Mushakwa

Chika Adour Mutalife

Kingsley Mwiya Musheba

Osbert Mwenyi Likanyi

Rodwell Sihela Mwanabwe

Albert Sekeni Mangalazi

Rafael Lyazwila Lifumbela

Postrick Mowa Mwinga

John Pause Lubilo

Chris Puisano Ntaba

Saviour Ndala Tutalife

and in respect of the conviction of high treason each accused is sentenced to 35

years imprisonment of which a period of 20 years imprisonment is suspended for a

59

period of 5 years on condition that the accused is not convicted of the crime of high

treason committed during the period of suspension.

[189] In respect of each of the count of murder each accused is sentenced to 30

years imprisonment of which a period of 15 years imprisonment is suspended for 5

years on condition that the accused is not convicted of the crime of murder

committed during the period of suspension.

[190] In respect of each of attempted murder each accused is sentenced to 10

years imprisonment.

[191] This Court orders that the unsuspended periods of imprisonment imposed in

respect of the counts of murder and the periods of imprisonment imposed in respect

of the attempted murder counts should run concurrently with the unsuspended

period of imprisonment imposed in respect of the count of high treason.

[192] In respect of: (the supporters)

Bollen Mwilima Mwilima

Charles Nyambe Mainga

Mathews Muyandulwa Sasele

Fabian Thomas Simiyasa

Kester Silemu Kabunga

Mathews Mundi Pangula

Bernard Maungolo Jojo

Richard Simataa Mundia

Martin Siano Tubaundule

[193] Chika Adour Mutalife (attacker/soldier) was described by this Court as an

attacker or soldier on 2 August 1999 however this Court in the exercise of its

discretion has decided to deal with him under this section due to his youthfulness at

the time of his arrest. In respect of the conviction of high treason each accused is

sentenced to 30 years imprisonment of which a period of 20 years imprisonment are

60

suspended for a period of 5 years on condition that the accused is not convicted of

the crime of high treason committed during the period of suspension.

[194] In respect of the counts of murder each accused is sentenced to 25 years of

which a period of 15 years imprisonment is suspended for a period of 5 years on

condition the accused is not convicted of the crime of murder committed during the

period of suspension.

[195] In respect of the counts of the attempted murder each accused is sentenced

to 8 years imprisonment.

[196] This Court orders that the unsuspended periods of imprisonment imposed in

respect of the counts of murder and the periods of imprisonment imposed in respect

of the crimes of attempted murder should run concurrently with the unsuspended

period of imprisonment imposed in respect of the count of high treason.

[197] In respect of: (the light-lipped / taciturn)

Victor Masiye Matengu

Alfred Lupalezwi Siyata; and

Bernard Maungolo Jojo (supporter)

[198] Bernard Maungolo Jojo (supporter) was found by this Court to be a supporter

in the attempt to secede the Caprivi Region. However I have in the exercise of my

discretion decided to deal with him under this category due to his advance age in

years.

[199] In respect of the conviction of high treason each accused person is sentenced

to 20 years imprisonment of which a period of 17 years imprisonment is suspended

for a period of 5 years on condition that the accused is not convicted of the crime of

high treason committed during the period of suspension.

[200] In respect of the counts of murder each accused is sentenced to 20 years

imprisonment of which a period of 17 years imprisonment is suspended for a period

61

of 5 years on condition that the accused is not convicted of the crime of murder

committed during the period of suspension.

[201] In respect of the counts of attempted murder each accused is sentenced to 8

years imprisonment of which a period of 5 years imprisonment is suspended for a

period of 5 years on condition that the accused is not convicted of the crime of

attempted murder committed during the period of suspension.

[202] This Court order that the unsuspended periods of imprisonment imposed in

respect of the counts of murder and attempted murder should run concurrently with

the unsuspended period of imprisonment imposed in respect of the count of high

treason.

[203] George Kasana (accused no. 77) was convicted of count 272 ie contravening

s. 2(c) read with section 8(1) of the Departure from the Union Regulation

Amendment Act, 34 of 1955 as amended by the Departure from Namibia regulation

Act, 4 of 1993 (illegal exit from Namibia).

[204] Oscar Kashalula Muyuka Puteho (accused 49) was convicted of count 273

similar to count 272 (Illegal exit from Namibia).

[205] George Masialeti Lisheo (accused 15) was convicted of count 274 i.e.

contravening s. 6(1) of the Immigration Control Act 7 of 1993 (Illegal entry into

Namibia).

[206] In respect of:

George Kasanga (accused 77); Oscar Muyuka Puteho (accused 49) each accused is

sentenced to 6 months imprisonment which 6 months imprisonment is suspended in

toto for a period of 3 years on condition that the accused is not convicted of

contravening s. 2 (c)1 read with s. 8(1)(a) of the Departure from the Union regulation

Amendment Act, 34 of 1955 as amended by the Departure from Namibia regulation

Act, 4 of 1993 committed during the period of suspension.

62

George Masialeti Liseho (accused 15) is sentenced to 6 months imprisonment which

6 months imprisonment is suspended in toto for a period of 3 years on condition that

the accused is not convicted of contravening s. 6(1) of the Immigration Control Act, 7

of 1993 committed during the period of suspension.

---------------------------------

E P B HOFF

Judge

63

APPEARANCES

STATE: T July (with him A Adams)

Office of the Prosecutor-General, Windhoek

DEFENCE: P Kauta (Accused no: 65, 80, 84, 87, 90, 93, 95,

100 & 101);

P McNally (Accused no: 97, 98, 60, 91, 79, 64,

61, 58, 59, 77, 104 & 67);

V Kachaka (Accused no: 115; 30, 102; 96; 55;)

J Neves (Accused no:75; 37;68; 2; 9);

G Nyoni (Accused no: 103; 57; 44; 49; 88; 89);

J Samukange (Accused no:,69; 72; 73)

C Dube (Accused no: 53; 48; 47)

C Kavendjii (Accused no: 15; 11; 121)

P Muluti (Accused no 17; 6; 8; 54)

I Agenbach (Accused no: 3; 5; 7; 16; 18; 23; 24;

26; 31; 50; 63; 70; 71; 120; 122)

Instructed by Directorate of Legal Aid, Windhoek