AN application for leave to appeal the convictions and life sentence by one of the men convicted of murdering City of Windhoek employee, Peter Rosco Muleke on the instructions of his wife, was dismissed yesterday.
David Kondjara (42) applied to be granted leave to appeal against the murder conviction and life sentence imposed on him by Oshakati High Court judge Johanna Salionga on 4 March 2022.
He and Donald Hindjou (32) were convicted with Anastancia Lubinda (41), who is said to have hired them to kill Muleke, for a fee of N$5 000.
The body of Muleke, who was 36 at the time of his death, was found surrounded by bloody rocks near Penduka in Goreangab on 30 March 2015.
Judge Salionga found that they actively participated in the plot to murder Lubinda’s husband.
One of their co-accused, David Matali died in custody.
The judge acquitted two of the co-accused, Abuid Uazeua (40) and Oviritje musician Dollam Tjitjahuma after the state conceded it had failed to conclusively prove their case.
Lubinda, Kondjara and Hindjou were convicted on the strength of confessions they made to different magistrates, in which they admitted being at the crime scene, but denied participating in the murder. They disputed the confessions during the trial and said they were unduly influenced to make the confessions.
Salionga, however, admitted the confessions as evidence.
Not satisfied, Kondjara now applied for leave to appeal against both conviction and sentence in the Supreme Court. According to him, the effective term of life imprisonment is shockingly inappropriate in that it induces a sense of shock and is unreasonable in the circumstances and no reasonable court would have imposed it.
He claimed that the court was wrong in relying on circumstantial evidence, as there were no eyewitnesses to the commission of the offence of which he had been charged, convicted, and subsequently sentenced.
He claimed another court looking carefully at the proven facts could have come to a different conclusion
Further, he said, the court relied on confessions and/or statements, hence erred in fact and in law in the absence of proven evidence against them. The convict said the court further erred in law in relying and/or in applying the doctrine or principles relating to common purpose, hence convicting him while other co-accused were acquitted.
It (the court) erred in law in finding that the only and real issue to decide is that conspiracy to commit the offence does not find application, but rather that of common purpose against him only. He said the court also erred in law and/or fact, more particularly in not having regard that no evidence was adduced by state witness Nuule (investigating officer), yet the court made references thereto in support of the State’s case.
With regard to the sentence, Kondjara said the judge failed to take into account that he was a first offender, had spent seven years in custody pending trial, and had an effective term of life.
Judge Salionga said that in her view, there is no prospect of success and it is unlikely that the Court of Appeal will come to a different conclusion and dismissed the application and struck it from the roll. Kondjara was represented by Paulus Shilongo and the State by Ethel Ndlovu.