THE former Police officer who was sentenced to a 46-year prison term two months ago over the murder of a German tourist near Windhoek in mid-2007 will be getting a chance to appeal against his conviction and sentence.
Three judges of the Supreme Court decided on Thursday last week to grant Fanuel Festus Shipanga leave to appeal against his conviction and sentence, Shipanga’s defence counsel, Sisa Namandje, said on Friday.
The decision was taken by Chief Justice Peter Shivute and Judges of Appeal Gerhard Maritz and Sylvester Mainga.
Namandje said he would try to have the appeal fast-tracked so that the issues which he wants to question regarding Shipanga’s conviction can be aired and decided in the Supreme Court as soon as possible.
Acting Judge Dinnah Usiku sentenced former Police constable Shipanga (41) and a co-accused, Paulus Kamati (30), to an effective 46 years’ imprisonment each on May 26. Acting Judge Usiku had found them guilty on charges of murder, robbery with aggravating circumstances, kidnapping and possession of firearms and ammunition without a licence.
The two men denied the charges during their trial in the High Court in Windhoek.
They were accused of murdering German tourist Johannes Fellinger (56), robbing him and his wife, Elke Fellinger, and then kidnapping Mrs Fellinger with her murdered husband’s corpse with them in the Fellingers’ rented vehicle, in the Khomas Hochland west of Windhoek on July 8 2007.
Eyewitness identification of both accused men by Mrs Fellinger, DNA evidence linking both of them to scenes connected to the murder and other crimes, a confession and videotaped admissions made by Kamati, and a camera that was stolen from Mrs Fellinger during the incident were the main pieces of evidence on which Acting Judge Usiku based the conviction.
Mr and Mrs Fellinger were attacked by two men when they made a stop near the Von Francois Feste stone ruins in the Khomas Hochland. The couple had arrived in Namibia from Germany earlier on the day they were attacked.
Mr Fellinger was killed when he was shot in the head.
During the trial Namandje questioned and attacked the reliability of the three legs on which the prosecution’s case against Shipanga stood: the DNA evidence, Mrs Fellinger’s eyewitness identification, and the testimony of a witness who claimed to have been given a camera by Shipanga, with this camera turning out to have been the one that one of the attackers stole from Mrs Fellinger.
The witness who testified about the camera was a self-confessed liar whose evidence could not be relied on, Namandje argued. Mrs Fellinger’s identification of the two accused men in court, in the light of her inability to independently give a detailed description of the attackers, also meant that her evidence could not be relied on, he also argued.
On the DNA evidence, Namandje argued that the chain of custody and the integrity of the handling and testing of exhibits used in this part of the investigation of the case had not been properly proven, with the result that this evidence, too, could not be relied on.
Acting Judge Usiku convicted Shipanga and Kamati on March 25, and turned down both men’s application for leave to appeal on June 20.
Kamati is also now petitioning the Supreme Court to be given leave to appeal, his defence lawyer, Frans Kwala, said yesterday.
Shipanga has been in custody since his arrest in early August 2007. Kamati has also been in custody since his arrest in mid-September 2007.