Former commissioner of refugees Likius Valombola, who was convicted of murder and sentenced to an effective prison term of 14 years, wants the High Court to grant him leave to appeal the conviction in the Supreme Court.
His lawyer Sisa Namandje lodged the application this week before High Court Judge Claudia Claasen. The 57-year-old Valombola was convicted of the murder of former Namibia National Students Organisation (Nanso) executive member, 27-year-old Helao Kapembe Ndjaba.
Ndjaba died in the Katutura state hospital on 28 May 2018 after he was shot twice in the head between 18 and 19 May 2018 at the busy intersection of King Kauluma and Omuvapu streets in the Otjitenda location of Katutura.
At the time of the conviction, Claasen stated that Valombola was reckless as regards to the consequences when he fired two shots in the direction of persons on the street.
Namandje argued that the court failed in its duty to decide all issues raised and contested by the applicant (Valombola) when it failed to make a definite finding on whether or not the projectiles allegedly found in the skull of the deceased were proved to have been fired from the applicant’s identified firearm.
He further argued that the court materially contradicted itself by appearing to reject the evidence of Peter Mukwiilongo, which stated that the accused took aim and fired in the direction of the people gathered at the stationary car, and virtually using such evidence and making findings under which the applicant discharged his firearm and allegedly shot the deceased, notwithstanding the fact that his evidence as a single witness was not satisfactory in all material aspects.
Furthermore, he said, the court made a mistake in finding that the post-mortem report proved that the deceased had two entry wounds in his skull in circumstances where on a proper consideration thereof and the evidence of the pathologist, such a finding is factually unjustified.
He continued that the court made a mistake in finding that Valombola fired and shot the deceased, and that he had the necessary mens rea (criminal intent) in the form of dolus eventualis.
The court further erred in accepting, the lawyer said, the evidence of Mukwiilongo, which was materially contradictory, inconsistent and unsatisfactory throughout his own evidence, cross-examination and re-examination.
The court further was wrong when it found that the applicant and his two witnesses were aware that they were followed by a vehicle that was trying to stop them, and erred in its evaluation of this evidence and its rejection of the defence witnesses’ evidence in this respect.
For the reasons mentioned, he said, he believes that the appeal has more than reasonable prospects of success on appeal, and argued that the Supreme Court will come to a different conclusion.
State advocate Ethel Ndlovu indicated that the State is opposing the application, and said the reasons the judge gave in convicting the applicant were well-reasoned.
In her view, she said, the Supreme Court will not see it differently. Judge Claasen indicated that she would give her ruling on the application by 22 March. -firstname.lastname@example.org