Trial: Final Arguments

The final arguments presented to a South African court are lengthier and more detailed than those presented to a court in the United States. Although some written material is given to the court at the time of the arguments, the bulk of the case is made orally.

Jansen’s detailed summary stressed that, as he would have the judge see the testimony, the state witnesses were almost invariably honest and reliable, their inconsistencies the understandable result of human fallibility, while the defense witnesses were generally either irrelevant or deliberately misleading. Aaron Mushimba, he argued, was a SWAPO organizer who purchased the Landrover which Victor Nkandi had used at the assassination and other SWAPO terrorists used later. Under the law, he reminded the court, after the state had made the connection between Mushimba and an “act” of terrorism, the burden of proof shifted to Mushimba to show he did not commit the act.

Hendrik Shikongo came in for the most attention in Jansen’s summary. The evidence showed, Jansen argued, that he had angrily kicked up dust at Chief Elifas with his truck, that he arranged with Elizabeth and Nicodemus to transport the two “strangers,” that he knew both of them, that he went inside the bottle shop to make sure Elifas was there, that he waited outside for the gunmen after the shots were fired, and that he told Elizabeth, “The chief is finished, we killed him.”

The case against the three nurses, according to Jansen, was clear: The money had been collected for the use of SWAPO terrorists whose aim was to overthrow the government by force.

Cooper began the final argument for the defense by commenting on several general features of the case. The state, he pointed out, had made no allegation of a conspiracy among the members of SWAPO to which the accused were a party. No admissible evidence showed that SWAPO was even implicated in the assassination of Chief Elifas, and, indeed, the court remained in the dark as to the identity of the assassin or assassins. The state, in fact, failed to call various witnesses who were on the scene at the time of the murder, and it was strange, Cooper commented, that no statements were taken from certain witnesses later called by the defense. The implication of Cooper’s observations was that the state was more interested in trying and convicting SWAPO than in solving the Elifas murder.

As for the case against Shikongo, Cooper contended that there was “no shred of evidence” that Nicodemus and the two men intended to abduct or harm Chief Elifas or that Shikongo knew of any such plan. The same can be said for the prosecutor’s speculation that a plot to abduct various leaders existed and that Shikongo knew of it and participated in it. If there was such a conspiracy, Cooper suggested, it was curious it was not mentioned in the indictment but only raised by the prosecution near the end of the trial. The state failed to prove, Cooper argued, that Shikongo knew that the purpose of Nicodemus and the two strangers was to kidnap or harm Chief Elifas.

Cooper submitted that the evidence of both Festus Shaanika, another prosecution witness, and Elizabeth Namunjebo should be rejected because it was in some respects improbable and, in others, untrue. What Shaanika said on the stand conflicted in the details of circumstances, time, and place not only with what Shikongo acknowledged but with what the state’s own witnesses, Gabriel David and Sam Shivute, had mentioned. Cooper asserted that Shaanika, who testified for the state while under detention since August 21, had motives for not disclosing the true facts: He was a close friend of Nicodemus, he also had transported the alleged assassins, and his movements were consistent with someone shadowing Elifas.

Elizabeth Namunjebo, Cooper contended, was “a figure who would not have been out of place in the French Revolution.” Although she denied any knowledge of a plot to kill Elifas, as well as any knowledge that Nicodemus had wanted to speak with Elifas, she had spent a great deal of time with Nicodemus the several days before and including August 16 making arrangements for him. Although she denied asking Shikongo to take Nicodemus and the two strangers to the bottle shop, she had made a similar request of Dr. Ihuhua only a few hours before Shikongo said she asked him. She too had motives for falsely incriminating Shikongo: She had charges involving the illegal possession of ammunition, medicine, and SWAPO membership cards hanging over her, and she was the mother of four children who had been, at the time of her testimony, in detention for six months.

Overall, Cooper observed, the probability was that Shikongo had given Nicodemus and the other two rides out of a matter of chance. His activities on August 16 were not those of a man intent on aiding a murder plot. If he had assisted, he certainly would not have worn a SWAPO button.

Advocate Barker summarized the argument concerning Aaron Mushimba. He noted that the state must prove, but had not, that Mushimba handed the Landrover over to Victor Nkandi with the intent that Nkandi give it to persons whose object was to overthrow the government. Furthermore, the state must prove that Mushimba acted with the intent of endangering the maintenance of law and order. The only evidence, Barker pointed out, that Mushimba had handed the vehicle over to Nkandi was the testimony of Elizabeth Namunjebo that she had seen Nkandi driving a similar Landrover and that Mushimba had asked her over the phone whether Nkandi had passed by in a blue Landrover. There was evidence neither of Mushimba’s intent, nor that Nkandi was a terrorist, nor, if the Landrover did go from Mushimba to Nkandi, how it came to the possession of the unidentified persons who fired upon the South African army patrol.

The circumstantial evidence the state must rely upon, since it had no direct evidence, Barker argued, allowed for more possibilities than the inference that Mushimba’s purchase of the vehicle was a terrorist act. Another reasonable inference, for example, would be that Mushimba delivered the Landrover to Nkandi for delivery to Nkandi’s brother in Ovamboland. In any case, the state, Barker charged, failed to make a prima facie case against Mushimba.

Cooper took the final defense arguments in the case against the three nurses. He summarized the charges, noting that the state made no allegation of conspiracy or of any connection with SWAPO beyond mere membership. Cooper noted that all five of the state witnesses were detained for various periods after October 20, 1975, and that two were in detention until after they testified. Each of the five appeared fearful and apprehensive, which was hardly surprising when it is considered that they had been rounded up by armed soldiers, intensely interrogated, and in at least one case tortured. In short, he argued, the evidence given by the state witnesses was vague, contradictory, and inconsistent, in contrast to the satisfactory and corroborated testimony of the defendants. The state had failed, Cooper submitted, to prove the elements of a terrorist act beyond a reasonable doubt which, in turn, did not engage those provisions of the Terrorism Law that shift the burden of proof to the defendant to show he or she did not intend to endanger the maintenance of law and order or to accomplish any of the other results mentioned in the law. All that was proved concerning both the defendants and the state witnesses was that they had given their donations in compassion with the intention of helping persons in need.