Reluctant Witness Risks Prison Sentence

A WITNESS in a murder and armed robbery trial that resumed in the Windhoek High Court yesterday is at risk of being sent to prison after refusing to testify.

The reluctant witness, Lincoln Scholtz, has now been given until Tuesday next week to reconsider his stance and get legal aice, before he might be made to feel the force of the Criminal Procedure Act’s section that allows a court to send a recalcitrant witness to prison for up to five years.

Scholtz took the oath as a witness and answered a couple of questions posed by State aocate Ethel Ndlovu yesterday before he told Judge Naomi Shivute that he did not want to give any further testimony and that he was withdrawing from the case before court.

Before he made that announcement, Scholtz told the judge that he knew one of the three accused in the dock, Toivo Kashipolo, and that he had seen him on the day of the incident about which he is supposed to testify.

Kashipolo (35), Willem Kawulefelwa Valombola (43) and Fillipus Shishiveni Nomongula are on trial on a charge of murder, two counts of attempted murder, and charges of robbery with aggravating circumstances, possession of a firearm without a licence and possession of ammunition without a licence. They pleaded not guilty to all charges in October last year. The charges flow from an armed robbery that claimed the life of a security company director, Andries de Jager (68), on 2 November 2009.

De Jager was shot when he and an employee of his security company, HAMS Security, were robbed upon their return to the company’s office in the Northern Industrial Area in Windhoek with money that they had withdrawn at a bank to pay the monthly salaries of the company’s employees. A briefcase containing N$172 488,10 was stolen during the robbery.

Two of the accused robbers fled from the scene in a car, leaving behind their colleague, who had the stolen briefcase and then tried to make a getaway on foot.

The prosecution is alleging that this third member of the robber gang was Kashipolo.

He allegedly dropped the briefcase about 200 metres from the scene of the robbery and continued to run on for about 200 metres more before he was caught. By then Kashipolo had been shot and wounded by one of his pursuers.

The court has heard that a .38 Special revolver that was found lying 37 metres from the spot where Kashipolo was caught was later ballistically matched to a bullet point allegedly retrieved from De Jager’s body.

After telling the court that he was employed as a supervisor at HAMS Security at the time of the incident and that he had seen Kashipolo on that day, Scholtz said he did not want to tell the court anything else that he had seen.

He told Judge Shivute that it was his right to refuse to testify. That is an incorrect view, as he is by law compelled to testify, Judge Shivute quickly corrected him. It is only a suspect who has the right to remain silent, she said.

Scholtz stuck to his refusal after Judge Shivute had adjourned the court session to give him some time to reflect on his position. When the session resumed, Scholtz told the judge: “I am standing by my point. I will not testify.”

After Judge Shivute again explained to him that in terms of the law he had to testify, or could be sent to prison if he continued to refuse, Scholtz replied: “Then I am only saying our Constitution and our justice law must be rewritten.”

The reason for his refusal to testify was that he was treated badly in his employment after De Jager’s daughter took over the security company following her father’s death, Scholtz said. She made false and hurtful accusations against him, but did not realise that at some point in the future he was still supposed to be a witness in the trial about the killing of her father, he said.

With Scholtz excused from the witness stand until next week Tuesday, the trial is due to continue today.

Source : The Namibian