Two men arrested in August 2017 for robbery of N$60,000 in Ondangwa were finally released when on 5 October 2023 they were found not guilty of the crime.
The case dragged on for years without coming to conclusion while the accused sat in police custody year after year. But the conclusion of the case came about shortly after the matter was taken up by BB Boois Attorneys.
The State alleged that Mr Abel Wapunduka Elias (Accused 1) and Mr Fillemon Kanandjembo Kadhikwa (Accused 2) had taken part in a robbery in which Mr Samuel Panduleni Niikondo was robbed off money in cash amounting to N$60,000.
The crime was said to have taken place in a bar in a location of Ondangwa where the victim was playing a gambling machine after he had withdrawn the money from his bank account a few hours earlier.
At a trial before Ondangwa Magistrate Makapa Castro Simasiku, BB Boois Attorneys legal practitioner Bianca Boois-Auala represented Accused 1, while Charlie Iiyambo represented the State.
The State stated that at a time between 11 am and 12 pm while Mr Niikondo was busy gambling, Mr Kadhikwa suddenly came around in the bar and grabbed him by the neck, and then several other men came and wrestled him and kicked him down. And one of them reached for his pockets and took away N$60,000.
The robbers then run out to a white Polo that drove away in the direction of Oshakati.
The State called eight witnesses, including Ms Lucia Kaunapawa Immanuel, an employee of Nedbank Namibia at the time, who testified by confirming that indeed the complainant (Mr Niikondo) had withdrawn N$60,000 from their branch on the day in question. She also confirmed CCTV footage showing that at the time Niikondo was withdrawing the money there were three unknown people present in the bank.
Ms Esther Johannes, an employee of the bar where the robbery took place, testified that she had seen four men, including Accused 2, coming in the bar and robbing Mr Niikondo.
Another witness, Ms Hilma Taati Elago testified to the effect that on the date in question she saw a Polo that was being driven by Accused 1 (Mr Elias) as it hurriedly drove away from the bar where the robbery had taken place.
Mr Nathanel Festus Iipinge testified that he saw Accused 1 (Mr Elias) standing next to a Polo at (Iipinge’s) bar, but a short while later Elias removed the plate numbers of the car and put them inside before driving away to a nearby bar where the robbery then took place.
A police officer, Johanna Kafidi, testified that she had photographed the white Polo in which the accused were traveling when they were arrested; and it had damage marks on the left front side.
However when Elias and Kadhikwa testified in their defence they produced evidence indicating that at the time the robbery was said to have taken place in Ondangwa the two were in Oshakati.
The evidence produced was MTC printouts relating to transactional history of the accused persons cell phone numbers at the time the robbery took place.
Two employees of MTC, Mr David Veiko Elago and Mr Fillemon Shishiveni, testified that at the time the robbery was said to have been taking place in Ondangwa, the cell phones of the two accused men were showing to be receiving connectivity from MTC towers in Oshakati and Ongwediva.
An Oshakati Magistrate’s Court official, Mr John Mapenzi Sisamu, was also a witness in the defence of Accused 1. Sisamu testified that at the time the robbery was said to have been taking place Accused 1 was at the court in Oshakati to receive a refund of bail money which he had deposited for someone else in a different case.
After all evidence was presented, Magistrate Simasiku stated in his judgement that: “The court finds that the evidence presented by the state falls short of the onus placed on the state to prove beyond a reasonable doubt.
“The court is not satisfied that the witnesses identified the accused persons as the perpetrators, when this is coupled with the fact that there is sufficient evidence that places them 30 kilometres outside Ondangwa at the material time.
“The court is left with no choice but to give them the benefit of the doubt as they have presented a reasonably possibly true defence.”
In the end Magistrate Simasiku delivered a “Not Guilty” verdict for both men on the robbery charges.
“We are pleased that justice prevailed after such a long time,” said Bianca Boois-Auala of BB Boois Attorneys. “I seriously urge defense lawyers to apply the law and ensure that their clients’ versions are heard by the courts.”
