Court name
High Court
Case number
CC 167 of 1998
Title

S v Kramash (CC 167 of 1998) [1998] NAHC 13 (27 October 1998);

Media neutral citation
[1998] NAHC 13















CASE
NO.: CC 167/98





THE
STATE versus GALIT KRAMASH



HANNAH,
J 1998/10/27








JURISDICTION






Laws
of Namibia apply to persons in transit area at Hosea Kutako
International Airport.





CRIMINAL
LAW





MENS
RE A






Offence
of failing to make a declaration to a customs officer and offences of
importing or possessing rough or uncut diamonds require
mens
rea.
But
onus is on accused to prove absence of
mens
rea.



CASE
NO: CC 167/98 IN THE HIGH COURT OF NAMIBIA



In
the matter between THE STATE


versus








GALIT
KRAMASH











CORAM:
HANNAH,
J.









Heard
on:
1998/10/01,02


Delivered
on:
1998/10/27









JUDGMENT:


HANNAH,
J.
: The
accused has pleaded not guilty to an indictment which



contains
four counts. The first alleges failing
to
make
a declaration to a customs
officer
in
contravention of section
14(l)(a)(iii)
of the Customs and Excise Act, 20 of
1998.
The second alleges unlawful importation of 27 kilograms of rough or
uncut diamonds valued
at
NS47
338 344.00 in contravention of section 28(d) of Proclamation 17 of
1939 as amended. The third alleges unlawful possession of such
diamonds
in contravention of section 28(a) of the Proclamation. And the fourth
alleges bribery of a police officer. All these offences are alleged
to have been committed on or about 24th September, 1998 at or near
Hosea Kutako International Airport in the District of Windhoek.









The
facts of the case are largely common cause and it is convenient to
summarise them by reference to the evidence of the accused. She was
brought up in Israel and obtained a degree in the history of arts in
that country. She is now 26 years of age and is married. In the
latter part of 1997 her husband became resident financial director in
a diamond business known as the Catoka Project based
in
Angola. The Catoka Project is a joint venture between an Israeli
company called LLD, the Governments of Angola and Russia and a
Brazilian company. Another company called Heart Diamonds is an
associate company of LLD. Each month a consignment of diamonds was
sent from the Catoka Project to Tel-Aviv by courier. As a form of
perk the accused, who had joined her husband in Angola, was sometimes
asked to act as courier. She is studying for an honours degree at the
University of South Africa and if acting as courier took her to
Johannesburg for the diamonds to be shipped onwards to Tel-Aviv she
could spend time at the University campus in Pretoria. If she was
asked to do the through trip to Tel-Aviv she could spend time at
home. And so in late 1997 she flew with a consignment of diamonds
from Luanda to Tel-Aviv via Paris. In February 1998 she made a
similar trip via Brussels. In March, 1998 she flew from Luanda to
Johannesburg where she delivered the diamonds to Ram International, a
professional courier company, at the customs point for onward
shipment to Tel-Aviv. And there was one other similar trip. On none
of these occasions was any problem experienced. The accused had with
her a certificate of origin showing LLD or its associate company,
Heart Diamonds, as owner of the




diamonds
which were placed in a sealed container. In Europe she stayed in
transit and if a security X-Ray picked up the diamonds and she was
questioned she would simply produce the certificate. The State has
not suggested that the involvement of the accused in shipping rough
or uncut diamonds from Luanda to Tel-Aviv was anything other than
legitimate.









On
23rd September, 1998 the accused was to act as courier once again
this time taking a container containing 27 kgs of rough or uncut
diamonds worth N$47 338 344,00 from Luanda direct to Johannesburg
where it was intended that she should hand it over to a
representative of Ram International as she had done previously.
However, certain documentation was not ready and it was decided that
she should travel the following day. On 24th September there was a
flight to Windhoek and a further flight from Windhoek to
Johannesburg and she was booked onto that route. And so it came
about that on 24th September the accused arrived at Hosea Kutako
International Airport, Windhoek with hand luggage in which was a
container containing rough or uncut diamonds worth N$47 338 344,00.
It was her intention, and this is conceded by the State, simply to
change aeroplanes and continue her journey to Johannesburg with the
diamonds where she would hand them over in a perfectly legitimate
way to a representative of Ram International. But that was not to
be.









The
facilities at Hosea Kutako International Airport are such that
transit passengers have to pass through the immigration point in the
arrival hall and the customs point in the baggage hall and from
there exit into the main airport hall. They then find their way
through an unrestricted area to the appropriate check-in counter,
exchange their tickets for a boarding pass and then make their way
past the immigration point into the departure lounge. If they are
changing aeroplanes they have the added burden of collecting their
luggage from the carousel in the baggage hall, taking it through
customs to the check-in counter in the' main airport hall and
checking it in.









On
arrival at the airport the accused followed the routine just
described. She reported to an immigration officer at the immigration
point and the officer, having checked her ticket and passport to
ensure that she was travelling on to Johannesburg, returned her
passport unstamped. So far as he was concerned she was a transit
passenger not seeking to enter Namibia and so there was no need to
stamp her passport or retain an immigration form. In addition to the
hand baggage containing the diamonds the accused was also travelling
with a suitcase and she was told to collect it from the luggage
carousel. This she did and she then asked two policemen where a
transit passenger should go and was told that she should go through
the automatic door leading to the unrestricted area. This she did
without declaring the fact that she was carrying rough or uncut
diamonds. The accused said that because she was a transit passenger
her mind was not focusing on customs or customs declarations or
anything of that kind. In her experience passengers in transit
simply do not declare their goods as they are not bringing goods
into the country in which they are in transit.









Having
passed through the automatic door at the customs point the accused
went directly to the South African Airways counter where she checked
in her suitcase and received a boarding pass. From there she went
through the immigration point for departing passengers and then,
with assistance, placed her hand luggage on the security



X-Ray
machine. She was then asked to go to a nearby room where a police
constable asked her to open her suitcase. This she did saying that
the suitcase contained diamonds. She showed the police officer the
certificate of origin, told her that everything was legal and
refused to open the sealed container. The container, she said, had
to remain sealed until arrival in Israel and she would only have
permitted it to be opened before arrival if required to do so by a
high ranking official. The police officer told her to wait and she
then returned with one Warrant Officer Isaacs. They went to Isaacs'
office where the suitcase was reopened and the accused informed
Isaacs that the sealed container contained diamonds. She showed him
the certificate but he said that it was not enough. The accused was
then taken to Windhoek and placed in custody.









As
stated earlier, the foregoing summary of facts is largely common
cause. There were some minor differences such as whether the accused
passed through the red or green channel at the customs point. Once
she was shown photographs of the customs point the accused was
adamant that she had passed through the green but the evidence of
one of the customs officials on duty was that the group of transit
passengers from the Luanda flight went through the red channel as
was the normal practice with all passengers from Angola. However,
there is no suggestion that the accused was questioned by any
customs official and nothing of significance turns on whether she
passed through the red or green channel. If she did indeed pass
through the red channel then I accept that her evidence is the
result of innocent mistaken recollection. Certainly I reject the
submission of Mr Goba, who with Mr Small appeared for the State,
that the evidence of the accused in this regard was a deliberate lie
reflecting on her general credibility.









The
major conflict in the evidence lies in that of Maria Katoole and
that of the accused. Katoole is the police constable who was
stationed at the security X-Ray



machine
and who accompanied the accused to the search room. She said that
she asked the accused to open her luggage but she refused to do so.
Instead she produced a paper and said she had papers for "those
items." Katoole said she read the document and said she would
like to see the items in the bag but still the accused refused.
Katoole said that she then told the accused that she would call the
supervisor but the accused said that she should not. She would pay
her. Katoole said that again she told the accused to open but she
still refused. Katoole then called the supervisor and handed the
document to him. When he read the document he instructed the accused
to open the bag which she did. And inside was a box. The supervisor
then called Warrant Officer Isaacs.









The
evidence of Katoole contrasts sharply with that of the accused in
certain respects. The accused denied refusing to open the suitcase.
All she refused to open was the sealed container containing the
diamonds. And the accused denied making any kind of offer to pay
Katoole. With regard to the question of refusal to open the suitcase
I prefer the evidence of the accused. Katoole accepted that the
accused handed her the certificate of origin and whilst this
document is by no means clear, being a mixture of different
languages, one glance shows that it has to do with diamonds.
Reference is made to "Heart Diamonds Ltd" and the word
"Diamantes" appears twice. It is most unlikely that the
accused would have handed this document over without explaining





that
it had to do with diamonds and, having done that, there could have
been no reason for her to have refused to open the suitcase although
opening the container itself was another matter. Also, at the
beginning of her cross-examination Katoole agreed that when she
asked the accused to open the suitcase she did so but she later


resiled
from this piece of evidence. In my view, the constable has confused
the accused's refusal to open the container with a refusal to open
the suitcase.









As
for Katoole's evidence that the accused said "Don't call the
supervisor, I will pay you", Mr Cassim, for the accused, made
three criticisms of the reliability of her evidence. Firstly, he
contrasted Katoole's evidence in the witness box with what is
contained in a written statement made by her on 25th September. In
that statement she is recorded as having said "She asked me not
to tell anyone and she will pay me for that." Katoole's
explanation for the difference was that her fellow constable who
took down the statement could have taken it down incorrectly but Mr
Cassim says that that is not good enough. Katoole read through the
statement and must have realised the importance of correctly
recording words which, if said, amounted to a bribe. The difference
between the witness' testimony and her written statement plants the
seed of a doubt over her testimony. And then Mr Cassim referred to
the admitted fact that Katoole did not inform her senior officer,
Warrant Officer Isaacs, of the alleged bribe until 25th September.
Katoole said she informed the other members of her unit on 24th but
gave no explanation why she did not inform her senior officer until
the following day. Speaking for myself, I would expect the report to
have been made to Isaacs contemporaneously with the report regarding
the diamonds and, in my judgment, the seed of doubt surrounding
Katoole's testimony grows. Perhaps it was suggested to her that an
allegation of bribery would assist in undermining the position of
the accused that she was not aware of any wrongdoing. Mr Cassim's
third point was that the accused had no reason to offer to pay
money. So far as she was concerned her actions were legal. There may
be something in this point but not much. As Mr Small pointed out she
would have been anxious to avoid any delay and that might have been
reason enough for her to offer a payment.









I
have considered the evidence of Katoole and that of the accused
together with counsels' argument with regard to count 4. I also bear
in mind the practice that section 208 of the Criminal Procedure Act
should only be relied on where the evidence of a single witness is
clear and satisfactory in every material respect:
R
v Mokoena
1932
OPD 79 at 80. At the end of the day I am not satisfied beyond
reasonable doubt that the accused did offer to pay Constable Katoole
and accordingly she is entitled to be acquitted on count 4.









When
dealing with count 1 both counsel for the State and counsel for the
defence referred to
Tieber
v Commissioner for Customs and Excise
1992
(4) SA 844 (A). That case dealt, in part, with the effect of section
15(1) of the South African Customs and Excise Act, 91 of 1964 which
provided that:











"(1)
Any person entering or leaving the Republic shall, in such manner as
the Commissioner may determine, unreservedly declare all goods in
his possession which he brought with him into the Republic or
proposes taking with him beyond the borders of the Republic, and
shall furnish





an
officer with full particulars thereof, answer fully and trutlirully
all questions put to him by such officer and, if required by such
officer to do so, produce and open such goods for inspection by the
said officer, and shall pay the duty assessed by such officer to the
Controller."















That
section is similar to section 14(1) of the Customs and Excise Act,
20 of 1998 which provides:















Persons
entering or leaving Namibia, and smugglers











14.
(1) Any person entering or leaving Namibia shall, to such officer
and in such form and in accordance with the procedures prescribed by
the Permanent Secretary, unreservedly declare -











(a)
at the time of such entering, all goods (including goods of or
belonging to any other person) upon his or her person or in his or
her possession and which he or she brought with him or her into
Namibia, and which -











(i)
were purchased or otherwise acquired outside Namibia or on any ship
or vehicle, or in any shop selling goods on which duty has not been
paid;





(ii)


were
remodelled, processed or repaired outside









Namibia;
or















(iii)
are prohibited, restricted or controlled under any







law;
and















(b)
before so leaving, all goods which he or she proposes







taking
with him or her beyond the borders of Namibia,











and
shall furnish such officer with full particulars of such goods,
answer fully and truthfully all questions put to him or her by such
officer and, if required by such officer to do so, produce and open
the container or package containing such goods for inspection by
such officer, and shall pay the Controller the duty, if any,
assessed by such officer."












When
dealing with section 15(1) of the South African Act Goldstone JA
said at 850H:















"The
only purposes of declaring goods are:





(a)


to
enable the customs officer to determine whether duty is









payable;
and





(b)


to
prevent prohibited or restricted goods being brought into the





country.











Goods
in transit do not fall into either of those two categories. No
purpose would be served in declaring goods in the hold of an
aircraft or ship which are not brought into the Republic. An
indication that section 15(1) does not apply to such goods is also
to be found in the provision there for a customs officer to require
the person declaring the goods to produce and open them for
inspection. In the usual situation such a requirement would be
impossible to fulfil in respect of goods in transit and not in the
physical possession of the traveller. It follows that the provisions
of section 15(1) do not apply to goods which remain in a transit
area."









One
difference between section 14(1) of our Act and section 15(1) of the
South African Act is that a distinction is apparently drawn between
goods upon the person of a person entering the country and goods in
that person's possession and it may be that that would lead to a
conclusion different from that expressed by Goldstone J.A. However,
in the circumstances of the present case it is unnecessary to
express an opinion on the matter. On the facts of the present case
the accused together with her luggage did not remain in the transit
area at Hosea Kutako International Airport. Due to the peculiar
arrangements for transit passengers she passed into the unrestricted
area of the airport albeit for a very short period of time. She
should have declared the diamonds in her possession to a customs
officer.












Another
case to which reference was made is
S
v Kanyamula
1984
(2) SA 121 (ZSC).



In
that case the appellant, whilst in transit, was found to be in
possession of prepared Indian hemp, a prohibited substance. He was
convicted of contravening the Dangerous Drugs Act. On appeal he
contended that as a transit passenger he was not subject to the laws
of Zimbabwe in relation to the possession of dangerous drugs. On
appeal the Supreme Court held that the transit lounge at Harare
International Airport is as much part of Zimbabwe as any other part
of the country and that the laws of Zimbabwe are as much applicable
there as they are in any other part of Zimbabwe. I respectfully
agree that the same holds true of the transit area at Hosea Kutako
International Airport. But in any event on the facts of the present
case the accused left the transit area and passed into the
unrestricted area of the airport.









The
real issue in the instant case is one of
mens
rea.
The
State conceded that
mens
rea
is
an element of each of the offences with which the accused is charged
in the first three counts and, in my view, that concession was
correctly made. And I am also of the opinion that the concession
made by Mr Cassim that the onus is upon the accused to prove, upon a
preponderance of probabilities, the absence of
mens
rea
was
correctly made. See
R
v
Britz
1949
(3) SA 293 (A.D.) at 301. I therefore turn to consider whether the
accused has established, on a balance of probabilities, that her
mind was innocent at all material times.









The
best evidence of the state of mind of the accused is her own
evidence and her evidence was that throughout her passage through
Hosea Kutako Airport she was unaware that she was doing anything
wrongful. However, it is all too easy for an accused to make such a
claim and where it is made the circumstances and facts of the case
must be carefully examined and considered. What stands out in the
present case is the fact that the accused had made previous
journeys, all legitimate, carrying rough or uncut diamonds from
Luanda to Tel-Aviv or Johannesburg. She had experienced no problems
on those occasions and had no reason to expect any when she
undertook


the
journey via Windhoek on 24th September, 1998. When she arrived at
Hosea Kutako International Airport she knew that all that was
required of her was to collect her luggage and check in for the
onward journey to Johannesburg. That her mind, in these
circumstances, did not focus on the question of a customs
declaration is,, in my view, perfectly reasonable and
understandable. The State adduced evidence of a large sign above the
luggage carousel informing passengers that they must make a customs
declaration but I can well understand if a transit passenger should
show no interest in such a sign. Why should she when she is not
intending to bring any goods into Namibia? And furthermore why
should she be aware that possession of rough or uncut diamonds in
Namibia without a licence or authority is unlawful? Mr Goba made the
extravagant submission that everyone should be aware of the fact
that Namibia is a diamond producing country and, as such, is likely
to have laws regulating possession of rough or uncut diamonds but,
in my view, there is no substance in that.









In
my view, the account given by the accused was plausible and credible
and to avoid the conclusion that her mind was, in all probability,
innocent the State must point to factors which indicate that it was
not. That, in my judgment, the State has failed to do. All it has
done is speculate. And as for the suggestion that the accused was
negligent in not ascertaining the laws of Namibia prior to
commencing her journey why should she when she expected to be in
transit? The only previous occasions she




had
passed through Hosea Kutako Airport were on two return flights from
Johannesburg to Luanda on Air Namibia when, according to her
unchallenged evidence, she went directly from the aeroplane to the
departure lounge.









In
my judgment, the accused has satisfied the onus placed upon her of
establishing that at all material times her mind was innocent.
Accordingly, she is acquitted and discharged on all four counts.









As
for the suitcase and the diamonds, Exhibit 1, it is ordered that they
be delivered to her as passenger hand baggage on an aircraft of the
accused's choosing at Hosea Kutako International Airport and on which
she is travelling to a destination outside Namibia.






ON
BEHALF OF THE STATE



























ON
BEHALF OF THE DEFENCE











Instructed
by
:



ADV
D F SMALL ADV R GOBA















ADV
N CASSIM AND WITH HIM ADV P J MILLER Conradie & Damaseb (Mr
Damaseb)