Windhoek High Court Judge Dinnah Usiku on Wednesday refused an application by murder accused Panduleni Gotlieb to have three State witnesses recalled for cross-examination.
Gotlieb (accused one) and four other men are accused of the murder of Walvis Bay businessman Hans-Jorg Möller.
Through his privately instructed lawyer Mbanga Siyomunji, he applied to have Inspector Helena Ashikoto, warrant officers Frans Nakangombe and Joseph Ndileowike to be cross-examined again. According to him, it is to clear up some misgivings they have about the officers’ testimony. Nakangombe and Ndileowike were the officers who arrested Gotlieb at a roadblock in the north and allegedly found the murder weapon and some items of the deceased in his possession. Advocate Basson Lilungwe opposed the application and said that there is no reason to revisit the evidence of the officers.
Judge Usiku started her ruling by giving a background on the journey of the trial so far and the roles of Gotlieb in the several delays the trial suffered. According to the judge, whereas the applicant is relying on the right to fair trial in his application, not all rights under Article 12 of the Constitution are absolute and that the true content of Article 12 was the right to fair trial which is not absolute and unlimited.
Thus, she said, the concept of a fair trial is flexible, requiring a balance to be struck between individuals’ right, a fair trial and the State’s obligation to protect the interest of the public and effectively combating and prosecuting crime. “The right to a fair trial should not be for the exclusive benefit of the applicant as a trial should also be fair towards alleged victims of a crime and society,” the judge stressed.
She further endorsed the sentiments that a perception exists in some circles that the fundamental right to a fair trial focus exclusively on the rights and privileges of accused persons.
“The rights, however, shall be interpreted and given in the context of the rights and interests of the law-abiding persons in society and particularly the persons who are victims of crime, many of whom may be unable to protect themselves or their interest because they are dead or otherwise incapacitated in the course of crimes committed against them,” the judge emphasised before she dismissed the application and ordered that the defence case must start forthwith.
Gotlieb, David Tashiya, David Shekudja, Elly Ndapuka Hinaivali and Malakia Shiweda are charged with murder, attempted murder, conspiracy to commit housebreaking with the intent to rob and robbery with aggravating circumstances.
Yesterday, Gotlieb took the stand and testified in his own defence. According to him, he was nowhere near Walvis Bay on the day in question. He said that he was at his father’s residence in Ombili and that the next day he went to the north to attend his sister’s funeral.
However, on his way there, he was arrested.
Joseph Andreas, who is representing Shiweda, had another story to tell. He told Gotlieb that his client’s instructions are that he was approached by accused four – Hinaivali – to drive him to Walvis Bay and that he did just that on the morning of 16 June 2016. He said that Shiweda instructed that he drove Tashiya, Shekudja and Hinaivali to Walvis Bay in Hinaivali’s Opel Corsa and that in Walvis Bay, they met up with Gotlieb. He further said that his client instructed that later that evening, he was phoned by someone from the group and was instructed to collect them on the main road in Walvis Bay from where they returned to Windhoek after dropping Gotlieb in Okahandja. Further, the lawyer said, his client instructed that he saw Gotlieb with a firearm and a black bag when he was dropped off.
Gotlieb denied all this and said that he did not have a bag with him when he boarded the bus to the north in Okahandja. Tashiya is represented by Kalundu Kamwi, Shekudja by legal aid lawyer Tanya Klazen and Trevor Brockerhoff represents Hinaivali.
The accused remain in custody.