August 24, 2015, 7:54am
Avid 7 shake off less serious charges
ALL of the seven people being prosecuted over the alleged embezzlement of a Social Security Commission investment of N$30 million in early 2005 will still be in the dock when their trial continues in the Windhoek High Court.
The seven accused will not continue to face the same charges on which they went on trial in May last year, though, after Judge Christie Liebenberg on Friday acquitted all of them on some of the counts on which they are being prosecuted.
In a judgement on an application for the discharge of the seven accused after the end of the prosecution's case in their trial, Judge Liebenberg acquitted only one of the seven, retired Namibian Defence Force brigadier Mathias Shiweda, on the main charge of fraud and its alternatives. Shiweda will still have to answer to a charge of reckless or fraudulent conduct of business, though, the judge ruled.
Five of Shiweda's co-accused - former National Assembly members Paulus Kapia and Ralph Blaauw, Inez /Gâses, and lawyers Otniel Podewiltz and Sharon Blaauw - were placed on their defence on the fraud charge.
Konjore causes a stir at meeting
FORMER minister Willem Konjore caused a stir at a meeting convened by the land reform ministry between //Karas region's traditional authorities when he tried to acknowledge the unrecognised Goliath traditional authority's presence.
Land reform minister Utoni Nujoma convened the meeting at Keetmanshoop on Thursday to discuss land-related issues following several requests for an audience with him by the traditional authorities.
It all started with Konjore saying: “I do not want to provoke any ill feelings among you” as he suggested that an opportunity be given to the unrecognised traditional authority to introduce their tribal leader.
/Hai-/Khaua deputy captain Stephanus Goliath quickly objected to Konjore's motion.
“I object. All the traditional authorities have concerned groups, and I believe you would not have allowed what you're doing in your case. That's wrong,” Goliath angrily objected.
“What you are trying to allow is creating conflict and division among the people,” Goliath added. “It was not my intention, I am withdrawing my suggestion with no ill feelings. I respect you (Goliath),” Konjore retorted.
The unrecognised traditional authority leadership, who attended the meeting despite not being invited, sought an audience with Nujoma as they were not given an opportunity to air their concerns during the meeting.
However, a source close to the minister indicated that he had refused to meet them.
The Goliath leadership apparently wanted to meet Nujoma to demand back land in the Berseba area they claim was allocated to the Goliath clan in 1975.
Addressing the traditional leadership, Nujoma stressed that government remains the custodian of land with traditional authorities only being given the responsibility to administer it. “All the land is vested in the state, that must be very clear,” Nujoma emphasised.
Appeal revives law on stolen property
A SECTION of the 1956 law under which people found in possession of suspected stolen property were usually charged and prosecuted in Namibia has been resurrected by the Supreme Court, two years after being declared unconstitutional in a High Court judgement.
Given the prevalence of robbery and theft in Namibia, it was justifiable for the legislature to discourage the market for stolen goods by obliging people who acquired goods somewhere else than through a public sale to first establish that the goods had not been stolen, Judge of Appeal Dave Smuts said in a judgement on the constitutionality of a section of the 1956 General Law Amendment Ordinance that was delivered in the Supreme Court on Wednesday last week.
Judge Smuts, with the backing of Judge of Appeal Sylvester Mainga and Acting Judge of Appeal Kate O'Regan, reasoned that section 7(1) of the General Law Amendment Ordinance is not unconstitutional. That section of the law requires that someone who acquired or received stolen property should prove that he or she had a reasonable belief that the goods had been the property of the person from whom it was received, or that the person had been authorised by the owner of the goods to dispose of it.
In the absence of such a reasonable belief in the lawful origins of goods bought or received by someone, the person can be convicted of being in possession of stolen property.
A Walvis Bay resident who was facing a charge of theft and also risked being found guilty of possessing stolen goods, after he was allegedly found in possession of three stolen welding machines in August 2010, questioned the constitutionality of the relevant section of the ordinance. His attack on the constitutionality of the section was based on an argument that it infringed his right to a fair trial by creating a reverse onus that required of an accused person to prove his or her innocence.
While the Constitution guarantees the right to a fair trial, that right is not absolute and unlimited, Judge Smuts found in the appeal court's judgment. He stated on that point: “The right to a fair trial is flexible, requiring a balance to be struck between an individual's rights to a fair trial (including that to be presumed innocent) and the state's obligation to protect the interest of the public in effectively combating and prosecuting crime”.
Judge Smuts went on to find that the requirement that people found in possession of stolen property should be able to provide a reasonable basis for believing that the goods had not been stolen, was compatible with the Constitution.
“The value of discouraging people from acquiring goods other than at a public sale unless satisfied they are not stolen, is clear,” he said. “The consequence will be to oblige the public to make inquiries in a manner that might help diminish traffic in stolen goods. The importance of [section 7] in combating crime, including violent crime in the form of robberies, is beyond dispute. The courts in Namibia have repeatedly stressed the prevalence and scourge of robbery and its deleterious impact upon society. The need to diminish traffic in stolen goods and curtail robbery and theft in Namibia is a compelling legislative objective.”
He also stated: “The effect of the presumption is to require members of the public to exercise care and take reasonable steps to establish that goods are not stolen when acquiring them otherwise than at a public sale.”
That requirement had the beneficial effect of affirming the importance of law-abiding citizens taking steps to discourage criminal conduct and refraining from becoming involved in illegal activities, Judge Smuts indicated further.
The Walvis Bay resident who attacked the law on constitutional grounds has in the meantime been acquitted, the Supreme Court was informed a day before the prosecutor general's appeal against the High Court's judgement was heard in March.
Danie Small represented the prosecutor general in the appeal. Norman Tjombe, having been asked to act as a friend of the court, represented the former theft suspect.
All stories courtesy of The Namibian