NO.: CC 118/96
STATE versus DR REINHARD EUGEN AUGUST STROWITZKI AND
ON SENTENCE CRIMINAL LAW AND PROCEDURE RECUSAL OF PRESIDING TRIAL
basic requirements to succeed for a recusal application based on the
reasonable suspicion or perception of bias, are:
by the applicant at least on a balance of probability of the facts
relied on for the reasonable suspicion of bias.
suspicion of bias in the mind of the applicant, objectively
justifiable, which must be held by the hypothetical reasonable,
informed person and based on reasonable grounds.
is also a presumption of integrity and competence in favour of
requirement of the proof of facts relied on for the alleged
reasonable suspicion, not satisfied when allegations based on pure
hearsay or double hearsay.
The allegation of a co-accused in an affidavit, that presiding judge
had promised him not to sent him to prison on 130 charges of fraud,
is so farfetched and improbable, coming from a person
is a self-confessed liar of grotesque proportions and in addition a
person who himself provided expert evidence that he had diminished
responsibility, that no weight could be given to his allegations.
The application for recusal rejected as
misconceived and a gross abuse of process.
NO. CC 118/93
THE HIGH COURT OF NAMIBIA
the matter between
EUGEN AUGUST STROWITZKI
& 17; 1996.08.05, 09 & 12;
I will divide this judgment into three parts as follows:
APPLICATION FOR RECUSAL
Monday the 12th August 1996 after reading the papers and hearing
argument I dismissed the application on behalf of accused no. 1
Strowitzki for my recusal and for the declaration of criminal
proceedings against accused 1 and 2 as null and void. The Court gave
as the main reason for the dismissal that the application is a
gross abuse of Court procedures and said that full reasons would
be given later. The hearing of argument on behalf of accused no. 2
regarding sentence was .then proceeded with and thereafter the matter
was adjourned for sentence to Monday 19th August. After adjourning
the hearing for sentence, I also charged Mr
counsel for accused no. 1, with contempt of court and adjourned this
hearing also to 19th August, to be proceeded with after sentence of
parties will be referred hereinafter as follows: Accused
for the State:
Mr Small; Counsel
for accused no. 1:
Mr Geier; Counsel
for accused no. 2:
2: THE APPLICATION FOR RECUSAL.
applicant in the recusal application is cited as Strowitzki;
respondent as the State; and Bock as a party. In paragraph 4 of
Strowitzki's founding affidavit, he explains that Bock is cited "in
so far as this may be necessary as a result of the interest he might
have in the outcome of this matter." The outcome referred to is
the recusal and declaration that the whole criminal proceedings,
the conviction of both accused
on 13 0 charges of Fraud amounting to approximately 2.5 million
Namibian dollars, be set aside. Mr Geier alleged that before bringing
the application he had inter
extensive discussions with Mr Botes which was not denied by Mr Botes.
Mr Botes did not formally associate him and his client with the
application but neither did he disassociate him and his client. Mr
Botes apparently also advised that the application be brought before
sentence. Bock is also the main witness on whom the application is
based. It is apparent therefore that although Strowitzki is the
applicant in name, both he and Bock are the applicants in
relevant parts of the application are:
notice of motion reads as follows:
NOTICE that application will be made on behalf of the abovenamed
applicant on 9 August 1996 at 15h00 or as soon thereafter as counsel
may be heard for an order:
leave to dispense with the forms and service provided for by the
Rules of court and that this application be heard as a matter of
the recusal of His Lordship Mr B O'Linn, the presiding judge in case
the proceedings in the abovementioned criminal matter conducted
under case number 118/93 as null and void as a consequence.
further and/or alternative relief.
NOTICE FURTHER that the affidavits of Dr R E A Strowitzki and Bernd
Albert Bock annexed hereto will be used in support thereof.
NOTICE FURTHER that if you intend opposing this application you are
notify applicant's counsel accordingly; and
a time period agreed to by the parties to file your answering
affidavits if any.
no notice on intention to oppose be given or no answering affidavit
be filed the application will be moved as soon as possible after
15h00 on 9 August 1996.
place the matter on the roll for hearing accordingly.
AT WINDHOEK ON THIS DAY, 9 August 1996.
: H GEIER COUNSEL FOR APPLICANT/ ACCUSED NO. 1 (ON THE INSTRUCTIONS
OF THE LEGAL AID BOARD)"
of Strowitzki reads as follows
REINHARD EUGEN AUGUST STROWITZKI do hereby make oath and say that:
contents hereof are within my own personal knowledge save where
otherwise stated or as the context may otherwise indicate.
am an adult male, Accused no. 1 in the criminal proceedings
instituted under case no. 118/93 against myself and another and the
. The Respondent is the State cited herein in its capacity as
the prosecuting authority care of the offices of the
Prosecutor-General, High Court Building, Windhoek, Republic
no. 2 is Bernd Albert Bock, an adult male, co-Accused in the same
criminal proceedings and cited herein in so far as this may be
necessary as a result of the interest he might have in the outcome
of this matter.
to my arrest during April 1992 and the commencement of the trial
thereafter during September 1993 and further protracted proceedings
and at the beginning
of August 1995
certain allegations came to my knowledge as a result of the fact
that the second accused, Bernd Albert Bock narrated
to myself certain events which are set out in greater detail in his
supporting affidavit annexed
and from which it emerges that it is alleged that the learned
presiding judge made certain promises to Accused no. 2's mother and
was highly alarmed as a result of the nature of these allegations
as they implied that the presiding judge, Mr Justice Brian O'Linn
had promised preferential
my co-Accused and that I would get disadvantaged
as a result.
I was under cross-examination at that stage of the trial and was of
the view that
not able to discuss this new aspect of my trial with my counsel, I
decided immediately to do something about these allegations made by
Accused no. 1.
the ensuing weekend I drafted a document headed 'Urgent and direct
application of no confidence in the presiding Judge Brian O'Linn by
Accused no. 1' which is dated 7 August 1995 which I also delivered
at the Registrar's office on 7 August 1995 who affixed the wrong
date stamp thereto dated 4 August 1995. I annex a copy thereof
a result of the service of this document, an adjournment was
necessitated as the record shows during which my intended
application for the recusal of the presiding judge was considered.
Accused no. 2 was unwilling at that stage to provide myself with a
supporting affidavit in this regard, it was decided not to proceed
with the intended application for recusal then.
trial thereafter commenced.
to this development I remained dissatisfied with the state of
affairs pertaining to my trial and as a result of the serious
averments made by Accused no.
to feel that the presiding officer was not unbiased as far as my
case was concerned and that I was at a disadvantage.
a result, I decided on a further avenue
to voice my lingering
accordingly addressed a letter to the
President of the High Court of Namibia
February 19 96,
a copy of which is
annexed hereto marked "B".
received a reply thereto from Mr Justice
J C Strydom, the said Judge President of the High Court of Namibia
dated 26 February 1996, a copy of which I annex hereto marked "C"
Accused no. 2 and myself were convicted and the bail of Accused no.
2 was withdrawn and Accused no. 2 found himself once again as an
inmate of the Windhoek Central Prison.
his detention there he made no secret of the fact that he was
dissatisfied with his conviction and repeated the allegations to
other fellow prisoners and myself relating to the 'lift' and the
promise he had obtained from the presiding judge and those
concerning the telephone conversation which apparently had taken
place between his mother and the judge seized with our matter.
took this opportunity to approach Accused no. 2 once again and
enquired whether he would now be prepared to provide myself with an
affidavit confirming the true nature of the averments made in this
no. 2 agreed.
As a result of instructions to application for
I once again gave counsel to bring an the recusal of the
the basis of the history and the nature of the averments made and
the assurances made by Accused no. 2 that his allegations
constitute the truth and which have now confirmed and deposed to on
affidavit I cannot but harbour the suspicion that the learned
presiding judge is biased
as a result of the nature of the promises made the Accused no. 2
and that I have therefore been placed at a disadvantage and aver
therefore that my trial cannot in such circumstances be fair.
respectfully submit that this belief is reasonable in the
circumstances, I accordingly pray that it may please the above
Honourable Court to grant an order in terms of the prayers
contained in the Notice of Motion to which this affidavit is
annexed and to also grant the condonation sought therein."
referred in paragraphs 8,
13 and 14
to certain Annexures "A", "B" and "C".
only relevant allegations are contained in Annexure "B",
p. 1 and 2 in a so-called complaint by Strowitzki to the Judge
I am since September 1993 Accused no. one in the High Court case no.
118/93 on the State versus Dr R E A Strowitzki and B A Bock. Before
September I was accused no. two. The presiding judge is Judge
O'Linn, the prosecutor is Advocate Smal and for the defence of
Accused no. one Advocate Geier and for Accused no. two Advocate
Botes. The acting interpreter is Mr Nolting. During adjournments of
the Court reported Accused no. two Mr Bock repeatedly about some
telephonical conversations between Judge O'Linn and the mother of Mr
Bock, the in the meantime late Mrs A M Bock and the assurance given
by the presiding Judge O'Linn about the finalisation of the criminal
case for the son accused no. two Mr B A Bock. Mr B A Bock, since 13
April 1993 free on bail, will get utmost
a fine was the assurance.
The two advocates of the defence and the interpreter as well myself
was listen to the reports in the courtroom of the B-court in the
High Court Building."
further related that on one occasion when a police constable fetched
Strowitzki from the cells to the High Court during a Court
adjournment during approximately August 1995, the said policeman
told him that he had seen his "co-accused Bock and judge O'Linn
together driving in the official car of judge O'Linn
with my arrival in the courtroom I became
as my co-accused Mr Bock told just this
to the interpreter and the
present defence advocates
Later explained Mr
in the lobby of the courtroom in details which assurance judge
O'Linn during the short car trip have given to Mr Bock about the
case which are still in process."
attached the reply by the Judge President dated 26/02/96 as Annexure
"C". The relevant part is in par. 2 thereof which reads as
are serious allegations levelled at a respected Judge and one who is
known to be impartial and objective. I have looked at each and every
one of the complaints. All are based on hearsay or rumour. Your own
legal representative who, so it seems, was apprised of all these
instances did not see his way clear to bring an application for the
recusal of the Judge. After all if there was any substance in these
stories it would have been the duty of your legal representative to
and if satisfied, to bring an application to Court. It seems that he
declined to do so and, in the circumstances, I am not going to act
on rumour and hearsay. May I again reiterate that if there is any
substance in these stories, which I doubt, it
will be the duty of your legal representative to investigate them,
and if satisfied, to bring an application to Court for the recusal
of the Judge."
relevant part of the supporting affidavit of Bock reads as follows:
hereby make oath and say that:
The contents hereof are within my own personal knowledge save where
otherwise stated or as the context may otherwise
am an adult male inmate of Windhoek Central Prison, co-Accused no. 2
in the criminal proceedings instituted under case no. 118/93 which
is presently still pending.
have read the founding affidavit deposed to by the Applicant herein
and confirm the contents in so far as it relates to myself. In
addition I wish to add the following:
or about 13 April 1993 and after
detention of approximately 1
was released on bail on the following
That an amount of N$200 000 be paid therefore;
I would have to report twice daily to the Windhoek Central Police
I was permitted to leave the District of Windhoek without the
requisite permission from anybody.
to my release but during this trial, I became engaged to Jacqualine
Francisca Eberenz now Bock on 28 September 1993.
October 1993 I made use of my privilege and travelled in the
company of my said fiancee to Otjiwarongo to visit my mother,
this visit and in the presence of my fiancee my mother informed me
that she had made a telephone call to the presiding judge Mr Brian
O'Linn and had asked him:
listen, what are you going to with my son.'
apparently received the answer:
Anne-Marie I will not send your son to prison.'
informal nature of the
conversation between the presiding
and my mother is explained as a
result of the fact that they
known each other for many years.
also refer in this regard to the confirmatory affidavit by
Jacqualine Francisca Bock, nee Eberenz whom I have since married
and from whom I have become divorced and wish to add that a
confirmatory affidavit by my late mother has become impossible as a
result of her passing away on 11 September 1994.
that time I also decided not to mention this information to my
co-Accused the Applicant as this was an aspect that quite clearly
favoured myself and as
I was reassured that the consequences of this trial would not hit
and during the continued trial proceedings either at the end of
July or at the beginning of August 1995 and during one of the lunch
adjournments I was on my way from my residence back to court to
attend the afternoon session.
I was in the process of walking, a vehicle stopped and Mr Justice
Brian O'Linn offered a lift to myself to court.
accepted and during this trip I enquired from him:
about our case'
answer by the presiding judge was:
Bernie, I won't send you to prison.'
then I informed Accused no. 1, the Applicant herein of this
conversation and also of what my mother had told me earlier.
Applicant, Accused no. 1 herein, reacted by bringing the
'application of no confidence' referred to in the founding papers
and I confirm that I was not willing at that stage to jeopardise my
position by making my statement available to the applicant, to
further his interests.
a result of this, the application for recusal made during August
1995 was apparently not persisted with.
The trial continued and we were
on 15 July 1996 on which day also my bail was withdrawn.
a result of this situation, I have at this stage languished in
prison for nearly 4 weeks already.
was upset as a result of this conviction and because of my
addition and because of the arguments exchanged during
the post-conviction stage of the trial I feared
that I am now facing a sentence of
substantial imprisonment contrary
to the promises made to my mother and myself.
voiced this dissatisfaction in prison and repeated there what
promises had been made to myself during the car trip in question
and to my late mother.
0 I was approached subsequently
by the Applicant herein with the request as to whether or not I
would be prepared to repeat these allegations under 'oath. I agreed
as emerges herefrom."
relevant part of the confirmatory affidavit of Jacqualine Bock (nee
Eberenz) reads as follows:
FRANCISCA B6CK (NEE EBERENZ) do hereby make oath and say that:
contents hereof are within my own personal knowledge save where
otherwise stated or as the context may otherwise indicate.
have read the founding papers and the supporting affidavit deposed
to by my ex husband, Bernd Albert Bock and wish to confirm its
contents in so far as it relates to myself."
reply to the aforesaid notice of motion, the State filed the
NOTICE that an application will be made on behalf of the Respondent
on 12 August 1996 at 09:00 or as soon thereafter as counsel may be
heard for an order:
leave to dispense with the forms and service provided for by the
Rules of court and that this application be heard as a matter of
out all averments in the affidavits and other documents referring
by the mother of accused 2 and what was allegedly said to her and
by her; and
allegedly made by the Honourable presiding Judge Mr Justice O'Linn
to Accused 2 and his mother
by Applicant, which are scandalous, vexatious, or irrelevant in so
far as it constitutes inadmissible hearsay by person who are not
parties and not called as witnesses to prove the truth of the
matters stated therein;
Further and/or alternative relief."
prelude to the
morning of the application in open Court.
15 July 1996 I convicted both Strowitzki and Bock on 130 counts of
Fraud totalling an amount of N$2 461 958. The case was then
postponed to 16th July for evidence and argument on sentence.
Evidence was then called in regard to Strowitzki and subsequently
argument concluded in regard to both Strowitzki and Bock but, at the
request of counsel for Bock, leave was granted for postponement to
17/07/96 to enable Mr Botes to decide whether or not to call a
psychiatrist Dr Maslowski in mitigation to testify about Bock's
alleged diminished responsibility.
17/07/96 a further indulgence was granted for postponement to
05/08/96 on the application of Mr Botes, to call Dr Maslowski.
05/08/96 Mr Botes again applied for a further indulgence to postpone
the matter to 09/08/96 to call Dr Maslowski. This application was
on 09/08/96 Dr Maslowski testified. He was cross-examined by Mr
Geier as well as Mr Small.
Court also put certain pertinent and critical questions to Dr
Maslowski to establish the relevance of his findings and opinion in
relation to the facts found by the Court in its judgment on
after the conclusion of Maslowski's
evidence, but before any
further argument could be
presented relating to the evidence of
Dr Maslowski, Mr
Geier rose to inform me that he has
instructions to bring another application.
said: "That there would seem to be a possible basis therefor,
but until I have it in affidavit form and have investigated this
avenue properly, I will not disclose this in open Court." He
then asked to see me in Chambers and I granted this request.
crux of what happened in Chambers was subsequently
put on record
in Court on the 12/08/96:
way I remember the consultation is that after Mr Geier indicated
that he wanted to bring an urgent application here in court, he also
asked that counsel see me in chambers. Arrived in chambers, were
present myself, Mr Geier, Mr Botes and Mr Small. Mr Geier then said
that he intends to bring an application for my recusal on the basis
of perceived bias. I asked him on more than one occasion whether he
would tell me what it is about. What is the allegation, and he said
on more than one occasion that he cannot do that because he wanted
to take the affidavits and by doing so he would then deal with the
matter in the shortest and the cleanest way. I also put to Mr Geier
why at this stage, and why cannot he bring any application for a
special entry or an appeal if he has any problem, if he has any
problem of any irregularity whatsoever. Mr Geier did not say why not
but insisted that he would rather take his affidavits and bring the
matter to court. It was also pointed out to Mr Geier by me that he
would have all these remedies and I indicated that I was not very
sympathetic at that stage to hear this application at this late
stage. Mr Geier insisted that he would take his affidavits and
rather bring the application to court because that would be the
cleanest arid the shortest way. I'm not dealing with what other
counsel said, you can add that if you think it's relevant.
Thereafter I waited from 15:00 to 16:30 for any documents in the
application and about 16:35 the Court resumed to hear this
application. Now as to what happened in chambers, Mr Geier, is there
any corrections you want to suggest? MR
Yes, the first thing that comes to my mind, My Lord, immediately is
the aspect where Your Lordship pressed me to, with the question why
this application had to be brought at this stage.
If my memory serves me correctly, I indicated to Your Lordship that
sentencing was still
and that there would be aspects which needed addressing
before that because
they could have
a bearing on sentence.
I believe that is an important aspect that I wish to place on
Yes, and is it correct at least that I asked you to give me an
indication of what the allegation is and you refused?
I indicated to Your Lordship that I did not want to bring such an
application until I have such instructions in affidavit form. In
other words I was not going to bring such an application lightly
and only if armed with affidavits. In other words with statements
under oath would I
decide whether to proceed with the application or not
and therefore I declined at that stage to disclose what the oral
instructions had been."
Botes and Mr Small agreed with the correctness of what I placed on
the meeting in Chambers, the Court hearing
resumed and I ordered
the matter to stand down until
15:00 as requested by Mr Geier.
15:00 there was still no sign of the application and only at
approximately 16:30 Mr Geier handed me a copy of the application.
was extremely shocked by the allegation in the
because I knew they were utterly false.
. It was the first time that I became aware of the complaint in
Annexure "C" to Strowitzki's founding affidavit and
consequently enquired from the Judge President about it. The Judge
President confirmed that he had never informed me of the allegations
and told me why.
should pause here to point out that in the subsequent hearing I
invited Mr Geier to confirm this with the Judge President but he
refused. He eventually however indicated that he could not
controvert this fact.
The Court resumed its hearing about 16:45.
the hearing resumed, represented at the hearing.
media was well
At the resumption the following exchanges took place:
My Lord, may I first just thank
the Court for the
indulgence granted to settle
COURT: Yes "
Yes, well Mr Geier, I intend asking for the police at high level to
immediately investigate these allegations and I can assure you that
every little bit of that is absolute lies, good. Carry on.
My Lord, may I (intervention) COURT:
Mr Geier, when you argued the matter did you read the Court Judgment
as far as Mr Bock is concerned where I rejected his story of being
influenced. I gave the Judgment rejecting all his excuses and you
come to this Court as a Counsel and you bring before this Court an
affidavit by Mr Bock that, from somebody in the family that his dead
mother talked to me and I promised not to send him to jail, did you
My Lord, I rely merely on the basis of the allegations deposed to.
But can you, Mr Geier, can you, didn't you have to examine it, to
investigate it, look at the trial what happened, whether this man
was given favoured treatment?
My Lord, the allegations are in respect of sentence, we
have not reached that stage yet.
Well, I've given you now some indication of what is the position,
what you should have considered, now carry on, Mr Geier. MR
Yes, My Lord, just briefly when it comes (intervention)
Mr Small, will you see to it that the matter is immediately
investigated at the highest level by the police, all the allegations
by the applicants.
Yes, My Lord, I will do that, My Lord, and I can just
indicate to Your Lordship, my Learned Friend, unfortunately at
this stage we only received these documents a short while ago, I'm
still studying them and I can just indicate it may happen that
we will have to file additional also affidavits in
this regard. COURT:
It may also be that after consideration of the application that I
will move for an application to strike out certain parts of the
affidavit so I'm just giving the Court an (intervention)
Well there's two basic allegations, one is supposed to be based on a
dead woman what somebody
understood she meant, and the
other one what accused no. 2
That is correct, that is correct, yes. "
hearing thereafter was adjourned until 09:00 on 12/08/96 .
12/08/96 the application was argued and after argument the Court
rejected the application as stated supra.
DID THE APPLICANT MAKE OUT A CASE OF URGENCY?
ruled at the outset that the notice of motion by the State to strike
out should be heard as an integral part of the application as a
question of urgency.
was no argument at all on the issue of urgency.
first prayer in the notice of motion was for "leave to
dispense with the forms and service provided for by the Rules of
court and this matter be heard as a matter of urgency."
there was no certificate of urgency by counsel as required by
Rules of court and no request for condoning this defect.
In the application itself there are no grounds set out in support of
the aforesaid prayer for treating the application as one of urgency.
The facts relevant to urgency are either extremely vague or
inconsistent with any urgency. So
Strowitzki nor Bock says when
consented to make an affidavit except that it
happened at or after conviction on
15th July 1996.
par. 3.16 - 3.20 of Bock's affidavit, supra.
two alleged events relied on took place
long before conviction,
so-called promise to Bock's mother more than 4 years ago and the
alleged promise to Bock, in August 1995.
The reason for the urgency is patently absurd. It amounts to
conviction of both Strowitzki and Bock took place on 15th July. In
that conviction there was not the slightest indication of
to Strowitzki; to the contrary, it was found that the lies told by
Bock, was to a substantive degree of his own making and that his
excuse that he was even ordered by Strowitzki, was rejected as
either false or grossly exaggerated. In the premises there could not
be any substance in any allegation that the conviction was unfair in
that I preferred
And as to sentence, the best possible way of demonstrating bias in
the form of preference for Bock would be in the judgment on sentence
which was contemplated for the day on which the recusal application
was brought or not later than the next Court day. If there then was
any indication of bias, an appeal could be lodged or even a review
or an application for a special entry, even before another judge. In
such a case, the presiding judge in the trial, would also have had
the opportunity to reply on affidavit, if need be to testify viva
would appear that both the accused had become adept in the more than
4 years that have elapsed since the arrest of the accused in the
requirements of a fair trial and how to abuse it.
were about 4 applications or attempted applications to quash the
trial on the ground that there could not be or would not be or was
not a fair trial. The present is the fifth attempt.
seems that they realised that by using the procedure before sentence
of application for recusal, they could fabricate any lie against the
presiding judge, without any opportunity for replying or without the
risk of a repudiation by the presiding judge, because should he
reply -they would then allege that he is now descending into the
arena and should for that additional reason recuse himself.
strong probability is that Strowitzki and Bock realised that a
substantial prison sentence for both accused could be expected and
then, as a last straw, conspired to lie
about the presiding judge, just as they did in regard to Dr Herrigel
and Mr Brandt.
was a notorious fact at the time that the presiding judge was under
tremendous pressure in that he was also chairing the Judicial
Commission of Enquiry into Legislation for the more effective
combating of crime and was due to leave on the very Monday, 12th
August for a series of oral hearings in Namibia countrywide.
justification that an application such as the present had to be
brought at the earliest possible moment is preposterous and devoid
of any sense.
there is no indication whatever in the founding and supporting
affidavits, that the application was brought at the earliest
possible moment. Secondly,
there was no sign whatever in the trial itself, that Bock was being
preferred above Strowitzki.
the allegation about preferring Strowitzki in inherently vague. If
the suspected preference was to the effect that I would and could,
notwithstanding what was said about Bock in an open trial at the
time of conviction, let Bock off completely with a fine or a
warning, then such prospect is so inherently improbable that it
could only be the brainchild of a sick and distorted mind.
follows that the application could have been rejected solely on the
ground that no justification was shown to treat the application on
the basis of urgency and to dispense with the Rules.
GEIER AND HIS CLIENT'S BASIC MISCONCEPTION.
Geier contended that all he had to prove was a reasonable suspicion
of bias on behalf of Strowitzki. This according to him was not
actual bias, but a reasonable perception of bias. He did not address
the question of what is meant in law by the word
As far as he was concerned, hearsay
is admissible and sufficient evidence. No facts need be proved. •
All that he needed was the fact
by Bock to his client Strowitzki, even if the basis for those
allegations by Bock is again an allegation made by a
to Bock, i.e. what is referred to in legal circles as "double
hearsay" . The truth of the allegations are not a relevant or
necessary issue. The credibility of the person who made the
allegations is also not relevant, not even if that person or persons
of gross proportions or have been proved as such in the same
judicial proceedings. The probabilities on the issue of the truth of
the allegations are also irrelevant because whether or not the
allegations are true, are itself irrelevant. The only relevant
facts, circumstances or event which need be considered in the
application,is that the applicant had harboured a suspicion for a
considerable time and then after conviction, a disgruntled
co-accused, now convicted and facing a considerable period of
imprisonment, was willing to make an affidavit, confirming
allegations made in the past prior to his conviction.
pertinent questions by the Court to alert Mr Geier to the correct
approach and all the relevant considerations and facts to be
considered, he stuck to his guns undeterred.
Geier apparently never considered, that should his approach be
correct, it would mean that the Court would be held hostage by any
criminal or group of criminals and that the administration of
justice would become impossible. This is accomplished merely by one
criminal saying that certain allegations of corruption and bias on
the side of the judge were made to him by another criminal and that
that other criminal confirms it on affidavit, resulting in a
reasonable suspicion of bias. All criminal proceedings must then
Geier referred the Court to several decided cases. In all these
cases the need for the facts on which the suspicion is based, to be
proved by the applicant, unless they are admitted or common cause,
is clearly stated. But Mr Geier had apparently not read that part of
these decisions. In any event, he never referred the Court to those
decisions on which Mr Geier relied were the following:
1991(1) SACR 375 (NmHC).
Industries SA (Pty) Ltd v Metal and Allied Workers Union,
1992(3) SALR, 673 AD at 690 D - 695 B. S
1994(1) SA 26 (Tr) at 30 A - C, 31 D - E. Moch
v Nedtravel (Pty) Ltd, t/a American Express Travel Service,
1996(3) SA 1 (AD) at 8 H - I and 9 A - G.
the latter decision, the judgment in BTR
were followed. The Court, per Hefer, J.A. said:
that case this Court concluded that the existence of a
reasonable suspicion of bias satisfies
the test. It is accordingly incumbent on every judge to recuse
himself from any matter in respect of which he is reasonably
suspected of bias towards or against one of the parties."
page 8 H - I.
the Court later pointed out, in a passage not
to by Mr Geier, that:
will be noticed that her apprehension that she might not get a fair
and impartial hearing allegedly arose from the strained relationship
between the presiding Judge and her attorney, as well as from Fine
AJ's alleged threat to 'get' Levin. She
obviously has to show that such a relationship in fact existed and
that the alleged threat had indeed been uttered.
Apart from these factual requirements, it was for the petitioner
to satisfy the Court that the grounds for her application were not
African Motor Acceptance Corporation (Edms) Bpk v Oberholzer,
1974(4) SA 808 (T) at 812 C ad
i.e. that they were
legally sufficient to justify the recusal of the presiding Judge."
at p. 12, par. G - H.
the test is stated as follows:
the Court a
to the correct conclusion on the facts?
seeking to apply the law to the facts there must steadily be borne
in mind that the cardinal principle of our common law already
an objective scrutiny of the evidence. The test to be applied
therefore involves the legal fiction of the reasonable man - someone
endowed with ordinary intelligence, knowledge and common sense. That
the test presented is an objective one, however, does not mean that
is to be applied in vacuo,
as it were. The hypothetical reasonable man is to be envisaged in
the circumstances of the litigant who raises the objection to the
tribunal hearing the case. It is important, nevertheless, to
remember that the notion of the reasonable man cannot vary according
to the individual idiosyncrasies or the superstitions or the
intelligence of particular litigant..
facts have been set forth in some detail in the earlier part of this
judgment. With a view to determining whether MAWU discharged
the onus of establishing a disqualifying bias, those facts in my
view represent a difficult borderline case."
the Australian High Court decision in Grassby
it was held:
test which is to be applied when bias is raised has been clearly
laid down. It is whether in all the circumstances the parties
or the public
might entertain a reasonable suspicion that the judge may not bring
an impartial and unprejudiced mind to the resolution of the matter
so, then the judge ought not to
to hear the matter. Of course, as
CJ pointed out in R
of the apprehension of bias does not establish that it is reasonably
a matter which must be determined
(My emphasis added) .
1991 LRC (Crim) Australia, 32 at 47 b.
the decision of the High Court of Grenada in a criminal case the
Court of Appeal held that:
trial judge had correctly refused to disqualify himself on the
ground of bias on his part, since no evidence
been put forward that the judicial conscience had been disturbed.
The application on this ground had to be rejected for lack of
report (1987) LRC (Const) 568 at 591 and 597 post.
the New Zealand Court of Appeal decision in R
per Eichelbaum, CJ, it was said:
informed objective bystander
not form the opinion that there was a reasonable suspicion of bias."
(My emphasis added).
report  1 LRC 610 at 614.
the Namibian decision in S
a judgment by myself, I held that the test was a mixed
and subjective one but intended the same approach as stated in the
also pointed out that there was a presumption of integrity and
competence in' favour of judges and referred in this connection to
Versekerinqskorporasie v SA Bpk. v Lira,
1971(2) SA 586 (A) at 590 F - G.
furthermore referred to S
1973(1) SA 796 (A) at 812 per Rumpff, A.J. to a similar effect. The
following passages need to be emphasised in the context of this
1973(1) SA 796 (A) at 812, Rumpff, AJ, as he
then was, approved of the following passage from
English translation of Voet,
as a correct statement of the Roman Dutch law, and I quote:
reasons insufficient for recusation. - Otherwise however no favour
should be shown to trivial and foolish reasons for suspicion, such
as are now and then found to be set up either in malice or
thoughtlessness. It seems that we should rather believe that those
who are bound by a sworn and tested loyalty, and have been raised to
the function of judging for their eminent industry and dignity, will
not so readily and for such slender causes depart from the straight
path of justice and give judgment in defiance of their own inner
sense of duty.'
Justice Rumpff continued as follows:
geskied by ons (soos in alle beskaafde lande) in die openbaar, met
sekere noodsaaklike uitsonderings en met die oog op die algemene
vertroue wat in the regspleging behoort te bestaan, is
onpartydigheid van die Regter nie net van belang vir 'n party wat in
die saak betrokke is nie, maar ook an algemene belang. Op grond
hiervan behoort myns insiens 'n Regter nie 'n saak te verhoor nie
wanneer dit gese kan word dat daar omstandighede is waardeur die
regtelike onpartydigheid, in die algemeen, wesenlik benadeel sou kon
word, en dit is die taak van die Regter self, in elke konkrete
geval, om te oordeel of die omstandighede van so 'n aard is dat
daardie benadeling sou kon gebeur. Wat die onderhawige saak betref,
is dit van algemene belang dat 'n Regter by die aanvaarding van sy
amp ' n eed afle dat hy aan alle persone op gelyke voet reg sal laat
geskied sonder vrees, begunstiging of vooroordeel. Na my mening
strek die vereiste van vreesloosheid van 'n Regter oor die hele
gebied van sy ampswerk. Hy behoort vreesloos te wees vir driegemente
voor of gedurende die verhoor van 'n saak en ook vreesloos oor die
konsekwensies van sy uitspraak. Dit is myns insiens ook van die
grootste belang vir die regspleging self dat 'n Regter toon dat hy
vreesloos is omdat anders die vertroue in die regspleging ernstig
ondermyn sou word en die regspleging self verydel mag word. Aan die
ander kant spreek dit vanself dat wanneer dit uit omstandighede in
'n saak sou blyk dat 'n Regter weens vrees
wel sy onpartydigheid prysgegee het, hy nie bevoeg sou wees om die
saak te verhoor nie'."
I referred to the South African decision of the Appellate Division
dealing with contempt of Court by a lawyer where it was said:
his argument before this court the
appellant's counsel rightly
contending that any of the grounds for
advanced by the appellant had any substance
But he argued that even if no
reasonable person could have
thought that the
reasons advanced by the appellant furnished
slightest foundation for an application for
recusal on the
ground of bias, nevertheless, if
there was a reasonable
possibility that the
appellant was so stupid as to suppose that
reasons were sufficient, he was not properly
the magistrate. It is, of course,
necessary to distinguish
between mere stupid
behaviour and conduct that is
insulting. But the circumstances must be borne
mind. The appellant was not a layman or a
lawyer of little
experience in the courts. His
application was not made on the
spur of the
moment but, as his quotation of extracts from
judgment shows, was prepared beforehand by him.
The case was
not like those in which a lawyer
had been guilty of shouting at
of an unpremeditated
piece of discourtesy (R
v Rosenstein, 1943
65) , where the fact that the party has been
opportunity to amend his conduct and
has refused to do so may be
of the greatest
the appellant acted
in advancing his preposterous arguments. It is, of course, true that
groundless, even ridiculous, arguments may be addressed to a court
without their reflecting on the good faith of those propounding
them. But this was no ordinary argument. The appellant knew that he
was going to make, in open court, the grossly insulting charge that
the magistrate had been conducting the case unfairly towards the
accused and was therefore unfit to continue to try the case. I
cannot believe that the appellant may honestly have thought that the
futile grounds advanced by him could justify his asking the
magistrate to recuse himself, or that there was the remotest chance
of the magistrate's doing so.
then, one asks oneself, did he make the application? The explanation
of his conduct is certainly not obvious. Perhaps his vanity had been
hurt because his objections, despite his strenuous arguments, had
been so regularly overruled, and he might have been aiming at
restoring his self-esteem and possibly his position in the eyes of
the public by a daring attack on the magistrate. Another possibility
is that he felt that the case was going against his client and hoped
to intimidate the magistrate or, perhaps, to drive him into
committing some irregularity of which use might be made on
appeal. The appellant's counsel submitted that so long as
he was aiming at the advancement of his client's cause he could not
be guilty of wilfully insulting the magistrate. I do not agree. It
may seem to a practitioner, in a ■ seriously misguided moment,
that his client's cause may be advanced if he wilfully insults the
court, but this ultimate sense of duty to his client will not excuse
him if his immediate intention was to insult the court. I do not
think that the reasonable possibilities admit of any more favourable
estimate of the appellant's behaviour than that he had not
consciously worked out a plan to insult the magistrate but that,
irritated by the lack of success of his objections, he (adapting the
language of Lord ESHER in Royal
Aquarium and Summer and Winter Gardens Society, Limited v Parkinson,
QB 431 at p. 444) allowed his mind to fall into such a state of
unreasoning hostility towards the magistrate that he was reckless
whether the charge of bias had the slightest foundation or not. And
if that was the position then, too, in my opinion he was wilfully
insulting the magistrate."
report, 1952(2) SA 475 (A)" at 483 D - 484 E.
was pointed out to Mr Geier during his argument that in the decision
the trial judge raised the point and set out the facts which were
therefore not in dispute at all.
in the Transkei
all the facts relied on were common cause.
Mr Geier was asked by the Court whether he could find any decision
which was on par with the facts in the instant case, he referred to
and pointed out that in Nhantsi
it was a ground of recusal that the presiding judicial officer drove
in the same vehicle with the complainant.
trip was only one of seven grounds relied on, all of which were
common cause. The trip in the Nhantsi
was 95km. In this case there is no indication of the distance and
duration of the trip except that it was short.
the aforesaid decisions it is crystal clear that there are two basic
requirements for a recusal application to succeed:
by the applicant at least on a balance of probability of the facts
relied on for the reasonable suspicion of bias.
reasonable suspicion of" bias in the mind of the applicant,
objectively justifiable, which must be held by the hypothetical
reasonable, informed person and based on reasonable grounds.
What are the facts relied on by the applicant and have they been
proved on a balance of probability?
The first alleged
fact in the affidavits of Bock and Mrs Bock, nee Eberenz, is that
the deceased mother of Bock telephoned the presiding judge some time
prior to October 1993 and asked him: "Brian listen, what are
you going to do with my son?" and the presiding judge replied:
"Listen Anne-Marie I will not send your son to prison."
allegation was allegedly made to Bock by his mother on some occasion
in October 1993.
is pure hearsay and inadmissible as proof of the alleged promise to
the mother of Bock and could therefore not be relied on as a fact on
which the alleged reasonable suspicion could be based.
The second and only other alleged fact is also contained in the
affidavit of Bock 3.9 - 3.12 and is to the following effect:
July/August the presiding judge gave Bock a lift to Court whilst the
judge was driving towards Court and Bock was walking on his way to
allegedly enquired from the judge: "What about our case",
and the judge replied: "Listen Bernie, I won't send you to
argument Mr Geier,for Bock made it clear that, as in the case of the
first fact supra,
he was not relying on the truth of the allegation but on the
perception in the mind of Bock created by the fact
that Bock made this allegation to the applicant Strowitzki.
insofar as the truth may be relevant, the following points must be
Subsequent to the alleged "trip" and conversation, Bock
was in fact found guilty on 13 0 charges of Fraud, amounting to
over N$2,5 million, committed over a period of 8 months, where he
was the inside
in a position of trust abused by him. In the judgment the Court
found that he was a self-confessed liar, that he persisted in his
lies for a long period and that his evidence that he was instructed
by Strowitzki, or strongly influenced by Strowitzki to tell these
lies, was rejected as false or at least grossly exaggerated.
Eventually the only excuse of Bock for his grotesque lies was that
he would have done anything to get out of jail and that he himself
repudiated these lies once he was out on bail and removed from the
influence of Strowitzki. The statement made to the police and
admitted by him was about the Minister of Finance, Dr Herrigel, who
allegedly was involved in a scam, i.e. corrupt dealings involving
N$62 million. It was common cause between Bock and the State at the
trial that these allegations against innocent and respected persons
holding high office were totally false.
Courts attitude towards Bock at the stage of conviction clearly
shows not the slightest indication of a promise to give Bock
preferential treatment. Mr Geier refused in his argument to concede
that there was not the slightest sign of preferential treatment of
Bock in the aforesaid judgment. It is therefore necessary for the
purpose of this judgment to repeat some of the passages from the
judgment delivered on 15/07/1996 :
this interview Bock did not claim to have acted bona
and without knowing of any fraud or theft.
amount of R2 641 000 stated by him as the amount he was allowed to
misappropriate was probably a reference to the amount alleged by the
State to have been misappropriated by him and Strowitzki namely R2
461 958 but where Bock inadvertently used the figures 641 instead of
of the important features of this interview were:
admitted that he misappropriated
Government money in the amount
641 000 in accordance with
instructions from one of the
alleged Government principals who took
out R64 million
of Government money
from the account of the Receiver
did not mention Strowitzki's name
assured the reporter that
what he was telling the reporter
be part of his evidence
the next year in the High Court.
This was however not the end of Bock's efforts to deceive the
police, the Court and the public with monstrous lies.
he appeared in the magistrate's court for bail on 1st April, 1993 he
persisted with his lies in stating under oath:
was working for my salary and I got instructions from
the Minister of Finance to have A2 (then Strowitzki) as an
It was alleged by Bock in his evidence
in this Court and admitted
Vuuren that Bock did admit to him
after his release on
bail and before
the commencement of the trial in the
Court, that his allegations in
his written statement to van
and in his interview with the reporter
fabrications originating from
The State has inter
placed considerable emphasis on the false defences raised by Bock
during the bail applications, in his two voluntary statements to the
police and in his admitted interview with the Windhoek Advertiser.
As already pointed out supra,
the lies told by Bock continued over the period September, 1992 to
April, 1993. I have also analysed supra
how he obviously cooperated with Strowitzki in a joint conspiracy of
deception, in which they in desperation, made the most outrageous
allegations, incriminating prominent but innocent public figures,
such as Dr Herrigel, the former Minister of Finance and Mr Brandt,
the State Attorney. Some time after being released on bail, Bock
admitted that these allegations were all lies but Strowitzki
persisted until the end. This Court however found in the judgment on
that these allegations were in fact false. Bock admitted not only
that they were false, but he knew'of its falsehood at the time when
he made it. His excuse was that he was under the influence of
Strowitzki and would have done anything to be released on bail. Mr
Botes on his behalf also put forward this excuse in argument.
said excuse is not credible and does not explain Bock's conduct. It
also does not help Bock to avoid the inferences that can and should
be drawn from Bock's conduct after arrest. The following points must
The lies told by Bock were not little white lies, they were gross
and atrocious, deliberate and reckless, whether or not they
destroyed the reputation of important and innocent public figures,
such as Dr Herrigel and Mr Brandt.
Bock blamed Dr Strowitzki for his scandalous conduct. First he
testified that Strowitzki instructed him, but under
cross-examination he admitted that Strowitzki at most advised him
and provided him with some information, that he was
aggressive at one stage against
Strowitzki did not produce the
required or promised
or because Strowitzki's
statement did not come up
vague, evasive and unconvincing on this issue as on all others, in
examination-in-chief as well as under cross-examination. The fact is
that when he alleged in his two statements to the police and in his
last bail application in April, 1993 where he alleged that Dr
Herrigel had given him the instructions, he knew that he was lying
and that he himself was the author of those allegations.
as pointed out supra,
struck out on his own. Just as Strowitzki did not mention Bock in
his proposed written agreement with van Vuuren, so Bock did
not'mention Strowitzki in his statements to the police and the
interview with the newspaper. He placed himself in the foreground as
He made a damning admission, if not a confession, in his interview
with the newspaper, where he explained that he was allowed to
misappropriate the amount claimed by the State, by Dr Herrigel. Here
he did not claim ignorance of illegality. He made this statement in
the context of allegations of alleged misappropriation by Dr
Herrigel and two others of R62 million.
He apparently was determined at that time, to tell this false story
He committed perjury when he continued to allege, this time under
oath in Court proceedings in April, 1993, that he acted on
instructions of Dr Herrigel that Dr Herrigel had told him that he
had appointed Bock as his agent.
his first statement to the police he told at least 19 deliberate
lies and added one in the second statement four (4) days later.
changed his various false defences as the realization dawned that
the previous false defences, could never succeed.
says that he would have done anything to get out of prison because
of conditions there. Later in the trial he conceded that he at least
benefitted in that he lost a lot of weight."
unreported judgment 15/07/1996, p. 36
37, 71 - 74.
The further significant event during the trial foreshadowed for a
considerable period, was the evidence of the psychiatrist Dr
Maslowski, immediately before the application for my recusal, in
which Mr Botes on behalf of Bock and obviously with the consent and
on the instructions of Bock, in the presence of Mr Geier and his
client Strowitzki, attempted to establish that Bock was a person
with diminished responsibility because, as a consequence of severe
damage to the frontal lobe of his brain, incurred in an accident, he
has a personality disorder, would be more prone to criminal
influence, would be more prone to commit crime, would have
diminished moral values, standards and conscience, would have moods
of euphoria, would talk big etc. It is obvious also, as conceded by
his counsel on his behalf, that he would be prone to lying. Bock
on his own defence evidence, was therefore a sick person.
Mr Geier, these events in the trial are not of any relevance or
weight. Of course, these events are crucial for any reasonable
person and the Court having to consider the credibility of any
statement made by Bock. To Mr Geier and his client the only event
of importance is that Bock was willing to make the allegations
concerning the judge in an affidavit.
probability on the question whether truth or fiction, were also
irrelevant and of no weight to Mr Geier and his client but again of
course, the probabilities are important to decide whether the
alleged facts were proved by applicant and also to the so-called
reasonable man, evaluating the facts to decide whether there is a
suspicion of bias and if so, is it a reasonable suspicion based on
The whole reason for Bock making his affidavit is that he realised
as from the conviction stage that he could expect a substantial
period of imprisonment, that there would not
therefore be any preference accorded to him compared to Strowitzki
when imposing sentence. But although according to Bock the events at
the trial made this clear to him, reasonable suspicion of preference
of Bock over Strowitzki remains the credo of Strowitzki, as put
forward also by his advocate Mr Geier, although the only basis
for their contention is the affidavit of Bock in which he says he
realised that there will be no preference.
fact that Bock's motive
now is that he will not be preferred as allegedly promised, and now
must find some other fraudulent scheme with Strowitzki of
preventing the infliction of punishment on them, apparently never
crossed the mind of Advocate Geier, not even to speak of his
client, who was involved with Bock in massive and continuous fraud,
in atrocious lies and schemes to attempt to frustrate justice. But
the probability of again resorting to fraud and perjury for the
same purpose, once he was again incarcerated with Strowitzki, would
be apparent to any reasonable person, to the informed person in the
street and to the Court, but apparently not to Strowitzki and his
Geier also relied on the principle underlying recusal applications
that justice must not only be done, but be seen to be done. Another
principle in fair trial issues referred to in the judgment in this
case on 15/07/96 and also referred to by Mr Geier in his argument
before conviction, is the requirement expressed in other
constitutions but implied in the Namibian Constitution, regarding
primarily the exclusion of evidence irregularly obtained which is
present application namely whether or not, regard being had to all
the circumstances, the administration of justice will be brought
the latter issue the following passage from the judgment of Seaton,
in the Canadian case of R
were referred to with approval in my judgment:
in whose eyes? That which would bring the administration of justice
into disrepute in the eyes of a policeman might be the precise
action that would be highly regarded in the eyes of a law teacher. I
do not think that we are to look at this matter through the eyes of
a policeman or a law teacher, or a judge for that matter. I
think that it is the community at large, including the policeman and
the law teacher and the judge, through whose eyes we are to see this
It follows, and I do not think this is a disadvantage to the
suggestion, that there will be a gradual shifting. I
expect that there will be a trend away from admission of improperly
... I do not suggest that the courts should respond to public
clamour or opinion polls. I
do suggest that the views of the community at large, developed by
concerned and thinking citizens, ought to guide the courts when they
are Questioning whether or not the admission of evidence would bring
the administration of justice into disrepute."
principle that justice must not only be done but must be seen to be
done as well as the test in recusation applications of the
perception of the hypothetical reasonable person, the so-called
"man" in the street, informed but without any special
idiosyncrasies, give the reaction of the society to the present
application some measure of relevance.
seems that informed opinion reacted with shock and disgust.
refer to the following reactions as mere examples of the perception
of the law-abiding, informed citizens as expressed in:
Windhoek Observer of August 10 and August 17 and the Republikein in
its leading article of 14th August.
take judicial notice of the aforesaid newspapers. Their existence
and publication and circulation are notorious facts in Namibia.
heading in the Windhoek Observer on p. 1 in large letters was:
HEARS HE'S BIASED".
demand judge's recusal".
heading on p. 2 is: "Shock move: Recusal demand." The
subheading is: "Just prior to sentence a new delaying tactic."
Another heading on the same page: "Gross liars, says Mr Justice
editorial comment on p. 6 under the heading: "Adept at
dawdling, temporising and thwarting the end of justice", reads
have no difficulty in playing cat and mouse with the lawcourts and
the game is one which they have mastered perfectly, making of
themselves adept and effective impediments to the execution of court
work. To temporise and to dawdle, to secure postponement after
postponement, dragging a trial out even as long as five years, are
the instruments and aids they have begun to use with such positive
results for them.
collectively they cost the State millions annually does not occur to
them, and should it, they are delighted. How these delaying tactics
erode the administration of justice is another matter of total
indifference to them for how on earth can a trial be totally fair
and open if years have lapsed before finally the salient aspects are
placed before the presiding officer?
Strowitzki and Bernd Bock are swindlers. They were on trial over the
past four years for close to 8 0 days. A vast sum of money was
expended on them, derived from the State's coffers. It is safe to
say that the costs are much higher than the 2 400 000 dollars they
on the day that they had to be sentenced they asked for the recusal
of Mr Justice Bryan O'Linn on the grounds that he was biased towards
them. Dwarfing this impudence, is that counsel for Strowitzki, Mr
Harald Geier, appears to have eagerly embraced this insolent demand
of recusal, condoning their challenge instead of advising them
properly. They had years in which they could have asked for recusal
but they waited till the last minute. And counsel appears to do
nothing about it.
is the land of the bandit, the loafer and the destroyer. The
sustenance of these evils is the ham-fisted government we have and
law systems and court practices which cushion the bandit and the
thug and which are not the stronghold of the law-abiding. The latter
has no dignity and rights; the bandit, yes, he has dignity and
Geier, what we saw in the high court yesterday is compelling us to
speak directly to you. Sir, you are being paid by the government and
the government gets its money from tax resources. You spoke of a
very serious matter when approached by some of us newsmen.
the contrary, Mr Geier.
we observed does not belong in a lawcourt. It belongs to the arena
of the buffoon, the clown and the jester. It sickened us, as an
example, to observe the laughing swindlers Bock and Strowitzki. Your
clients, Mr Geier, belong behind bars. The trial has reached its
climax and peaked out as a farce.
justice in our country."
the Windhoek Observer August 17, the editorial comment on p. 6 was:
of the more revolting events ever to take place within the otherwise
austere confines of the Namibian high court, was the Strowitzki-Bock
circus. The farce was compounded by the support these two swindlers
enjoyed from their counsel, Mr Harald Geier, who, whatever his
merits and his professional qualities, has caused himself untold
should have told Reinhard Strowitzki who was supported by the
pathetic Bock that he could not associate himself with the
outrageous recusal application.
those acquainted with what had happened, Strowitzki and Bock were
convicted on 13 0 charges of fraud in that they appropriated close
to 2 500 000 dollars of government funds in the department of
customs and excise through forged fuel levies.
were arrested 5 2 months ago, and they began a cat and mouse game
with the lawcourts. They got away with it. The State footed most of
the bill for their defence, and after conviction and on the very
day that they had to be sentenced,
made another application for recusal of Mr Justice Bryan O'Linn on
the grounds that the judge was biased.
Bock then came forward in support of Strowitzki by narrating and
later stating under oath that the most farcical tale in an attempt
to sully the name of Mr Justice O'Linn. The judge, according to Bock
who has been branded by the trial court as an atrocious liar, had
told him that he would not be sent to prison! Bock's mother,
according to Bernd Bock, was also on the telephone with Mr Justice
O'Linn and the judge, according to Mrs Bock's lying son, told her
too that her son would not go to prison!
could not be called upon to dismiss or support the story told by her
son for she died in September 1994.
the country know that this newspaper is steeped in high court
matters. The judges of the Namibian high court, without exception,
are people of the highest quality, meticulous and fair in what they
do and every citizen can take heart in the fact that the high court
is one of the last refuges left to those seeking relief from what
they consider unfair treatment, and those on trial for criminal
offences can likewise be assured of fair hearings and of judgments
strictly within the confines of the dictates of the law.
Strowitzki-Bock circus underlines that this is the era of the clown,
the criminal, the loafer and all those useless and
unsavoury elements burdening society.
men who implicated the Head of State, Dr Sam Nujoma, in an imaginary
scam involving 64 000 000 dollars in government monies and with Mr
Nujoma, the then minister of finance, Dr Otto Herrigel, is a
desperate final bid to defer sentence come up with yet another tale
sucked from their thumbs, is evidence of the absurd heights to which
unbridled liberties and human rights can take us if these
prerogatives are not linked to accountability and responsibility.
more disturbing is that an advocate, a legal practitioner enrolled
with the high court, supported the two swindlers by filing the
application for recusal. Mr Geier, did four years fail to introduce
you to a character like Strowitzki?
you ever ask him for documentary proof of his claim to a doctorate?
That you went ahead with the bid for recusal Mr Geier, is the crux
of the circus in the high court when the two swindlers had to be
country's law-abiding citizens, and those possessed of dignity and
self-respect, are aghast."
Republikein in its editorial comment on 14/08/96, p. 4 under the
this to say:
Brian O'Linn se besluit om horn nie aan die veroordeelde Reinhard
Strowitzki en Bernd Albert Bock se verhoor to onttrek nie, moet wyd
verwelkom word, want by besluit verteenwoordig meer as wat dit op
die oog af mag voorkom.
herrie rondom een van die mees senior en gerespekteerde regters van
hierdie land het gekom in 'n stadium waar Namibie juis nie hierdie
soort van ding kan bekostig nie. Dat regter O'Linn van eensydigheid
beskuldig word in 'n saak waarin die beskuldigdes reeds veroordeel
is, is al klaar verregaande. Dat hy boonop nog beloftes van
versagting aan een van die beskuldigdes sou gemaak het, klink nie na
die regter O'Linn waaraan die Namibiese gemeenskap gewoond geraak
O'Linn het tot voor die debakel 'n
vlekkelose rekord in die
Namibie gehad. Dat hy na al sy jare
nou beloftes aan 'n beskuldigde en veroordeelde se ma sou maak om
haar seun uit die tronk te hou, klink ook nie na die regter O'Linn
wat 'n lang loopbaan juis 'n rekord van diens aan die land opgebou
klink eerder soos die tipe van gedrag wat Namibiers die afgelope
jare van die twee veroordeeldes gewoond geraak het.
die veroordeelde Strowitzki en Bock se saak 'n toetssaak vir die
regter was, blyk nou duidelik. Daardie toets was nie net een om van
die 'partydige regter' ontslae te raak nie, maar was ook 'n deeglike
regter Brian O'Linn se integriteit. Dit was ook 'n toets vir die
regstelsel van hierdie land en een waarin bewys sou moes word dat 'n
man soos regter O'Linn onwrikbaar glo aan dit wat hy doen en waaraan
hy glo. Eerbaarheid het op die tafel beland en toe regter O'Linn die
aansoek vir sy onttrekking van die hand gewys het, moes die land
kennis geneem het daarvan dat hy een van 'n handvol Namibiers is wat
nog bereid is om in die naam van reg en geregtigheid alles van die
tafel vee totdat net gelykmatigheid en eerbaarheid oorgebly het.
woord egtheid het vandeesweek in die proses 'n hele paar keer op
daardie tafel van geregtigheid beland en dit staan in skrille
kontras met die twee veroordeeldes. Adv. O'Linn het sy lewe gewy aan
reg en geregtigheid. Hy het 'n lang rekord van hoe hy deur meer as
een bewind van die dag verwerp is, maar die een aspek wat juis soos
'n goue draad deur sy lewe loop, is sy toegewydheid aan dit waaraan
hy glo. Dat twee veroordeeldes wat skuldig bevind is aan 13 0 klagte
van diefstal van staatsgeld hom aan hierdie toetssaak moes
onderwerp, is weersinwekkend.
regter O'Linn die vuurdoop deurstaan
het, is 'n baksteen in the
geregtigheid in Namibie. *"
also: The Windhoek Observer, August 17, p. 7.
The possibility considering the evidence, that a presiding judge, of
my seniority, experience, independence and integrity as
perceived by the informed member of the public or hypothetical
would have promised a person like Bock with such serious charges
against him and such damning evidence supporting the charges, that
he will not be sent to prison, would be rejected with contempt as
follows from "F" supra
that there could be no
reasonable suspicion of bias established.
are many more reasons that could be given, but
those set out
would suffice for rejecting the
application for my recusal as
misconceived and a grave
abuse of process.
3: THE SENTENCE.
can now at last proceed with the sentence.
is trite law as Mr Botes has submitted, that the Court must consider
the personal circumstances of the accused, the crime committed and
the interests of society. The Court must keep in mind the aims of
punishment, namely deterrence, retribution and rehabilitation.
am first going to set out the facts and circumstances which apply
to both accused:
have committed very serious crimes, namely 13 0
counts of Fraud,
involving an amount of N$2 461 958.60.
Although both accused have only been convicted once in Namibia, i.e.
on 15/07/96 on these charges, they committed the 13 0 counts of
Fraud over a period of eight months and on each count they formed
the necessary intention again and made several but similar
these crimes were committed in the execution of one
scheme, and they were convicted on one occasion of all 13 0 crimes,
the accused were in substance no longer first offenders when they
committed the second count of Fraud. When they committed the 13 0th
crime, they had already committed 129 similar previous crimes.
was not a case where, the accused stopped of their own volition.
Their crimes were only stopped by police intervention. Mr Small is
correct to contend that it must be assumed that were they not found
out, these crimes would have continued indefinitely with a real risk
of the State losing many more millions of taxpayer's money, needed
for the upliftment of and maintenance of Government and society
during a period of increasingly scarce financial resources.
crimes involved fraud and corruption which are prevalent and
is still a loss of N$250 000 of taxpayer's money not recovered from
system of control at the Diesel Refund Department of the Department
of Finance was inadequate and constituted a temptation for the
was no remorse or regret shown by the accused. To the contrary, they
both continued with unscrupulous lies of the greatest gravity
and in order to ensure their acquittal, they were willing to use
any means, including perjury, defamation and injuria of innocent and
prominent personalities in society, of the gravest nature.
have shown themselves as criminals without conscience.
will now deal with facts and circumstances which differ: STROWITZKI:
is 42 years old, single, with one son. He is a Doctor of Economics
and has taken courses in criminal law and procedure at university.
is not a Namibian citizen.
. He has been in prison for more than four years since arrest.
During his time in prison he concocted false defences. After the
first four months, he was given a single cell at his request. This
did not amount to solitary confinement.
enjoyed the privileges of an awaiting trial prisoner as compared to
a convicted and sentenced prisoner.
for concocting his false defences and lies in prison, he otherwise
behaved himself in prison.
great part of his long pre-conviction incarceration and the
drawn-out trial was due to his own conduct and raising patently
false defences, putting in issue many points that could have been
admitted and by his several attempts to abort the trial on the
alleged ground that he either could not have or did not have or
would not have a fair trial.
The State financed his defence by Adv. Geier from taxpayer's money
amounting to tens of thousands of Namibian dollars.
is 45 years old, divorced.
is a Namibian citizen.
has some university education and with normal
was in a position of trust with the Department of
used this position to steal and defraud.
was detained for one year in prison awaiting trial
on bail. After being released on bail
he was subject to
restrictions preventing him from
at least confessed to some of his most atrocious
regarding his defence and the defamation and injuria of Dr Herrigel
and others. His defence during the trial was now reduced to
basically one issue.
more than one third of the time in the trial was used on his
defence was financed by himself and not from
accept as a reasonable possibility that he is a person with
diminished responsibility as a result of an accident. He
has a personality disorder, has diminished resistance to
anti-social behaviour, criminal activity and lying.
considered everything put before me in mitigation even though I do
not mention every detail.
it was not for the long detention of Strowitzki prior to sentence, I
would have sentenced him to fourteen (14) years imprisonment.
However, in view of the said detention, I will reduce his sentence
by three (3) years.
Strowitzki, you are sentenced to eleven (11) years imprisonment.
follows that fourteen (14) years imprisonment would also have been
the appropriate sentence for Bock, was it not for the
differentiating facts mentioned above, particularly his diminished
my view, justice will be done if he now receives the same sentence
Bock, you are sentenced to eleven (11) years imprisonment.
BEHALF OF THE STATE:
BEHALF OF ACCUSED NO. 1: Instructed by:
D F SMALL
H GEIER Directorate of Legal Aid
BEHALF OF ACCUSED NO. 2: Instructed by:
L C BOTES P F Koep Sc