By: Ludorf Iyambo
Windhoek high court on Wednesday dismissed the application for leave to appeal for Likius Valombola.
The court removed the matter from the roll and regarded it as finalised.
According to Judge Claudia Claasen, it is not sufficient for the applicant to state that there’s a reasonable possibility that another court will come to a different conclusion.
Claasen added that she was not satisfied that there would be reasonable prospects of success on appeal.
Valombola was convicted upon the conclusion of his trial on murder. He was sentenced to 18 years imprisonment. Four years imprisonment was suspended for five years on the condition that he would not be convicted of murder committed during the suspension.
Valombola sought leave to appeal to the Supreme Court against his conviction which the court opposed.
According to the court judgment, the application for leave to appeal consists of 14 grounds.
The court stated that there’s an overlap in some of them, and they will be dealt with together.
Ground one was that the court erred by failing 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 firearm.
Ground eight was that the court erred in applying circumstances evidence insofar as there was no linkage of the projectiles found in the deceased’s skull to the firearm.
Applicant’s lawyer Sisa Namandje said the court was supposed to have found that the mass of the projectile found in the deceased’s skull (exhibit C2 weighing 1,65 grams) was different from the specifications on the ammunition box of the applicant’s firearm.
Namandje added that the court ought to have found that the projectile (exhibit C2) was not fired from the applicant’s firearm.
State lawyer Ethel Ndlovu argued that a live round is a bullet before it is fired, and it cannot be said that the projectile, once it is fired, should weigh the same as one that is intact.
She also pointed out that the court did not need to rely on the ballistic evidence to conclude that the projectiles that killed the deceased were fired from the applicant’s firearm.
Ground three constitutes a complaint that the court contradicted itself by appearing to reject the applicant’s evidence that while seated, he fired two warning shots at a 45-degree angle.
At the same time, the court accepted that it was probable that if the applicant indeed shot at a 45 degree, to hit a person in the immediate vicinity.
The essence of grounds four, seven and 11 were poor witness evidence quality. The ground stated that the court could not have reasonably relied there to conclude that the applicant shot and killed a deceased by firing to shots.
According to the court judgment, the court did not rely on all witness’s evidence.
The judgment stated that the problematic aspects and reasons for not relying on the evidence were documented. There is no preclusion on the court not to have considered the other available and credible evidence in the matter.
Ground 5 was that the court erred in rejecting the applicant’s version that another person may have fired at and killed the deceased if a silencer was used, despite the investigating officer conceding that it was possible.
The state representative, Ndlovu, argued that it was pure speculation by the applicant as he was the only one seen at the scene with a firearm, and he also admitted to firing shots at the scene.
Valombola (57), the former commissioner for refugees in the home affairs ministry, was arrested in connection with the fatal shooting of Helao Ndjaba (25) in Windhoek, Ombili, location during the night of 18 to 19 May 2018.
Ndjaba was shot twice in the head, with both bullets hitting him in the forehead. He died in a Windhoek hospital on 28 May 2018.
