S v Haikera (Case No. CA 137/2007 ) [2008] NAHC 105 (23 June 2008);

Group

Full judgment
CASE NO


CASE NO. CA 137/2007

IN THE HIGH COURT OF NAMIBIA


In the matter between:


ANDREAS MUTJOKA HAIKERA APPELLANT


and


THE STATE RESPONDENT


CORAM: VAN NIEKERK, J. et Frank, A.J.


Heard on: 2008.06.23

Delivered on: 2008.06.23

_______________________________________________________________

JUDGMENT

FRANK, A.J.: [1] Appellant was convicted on a charge of contravening section 35(1) of the Anti-Corruption Act, Act 8 of 2003 and sentenced to 30 months imprisonment of which 16 months were suspended on certain conditions. This appeal is against both the conviction and sentence.

[2] This nub of the attack against the conviction is that the magistrate took irrelevant and inadmissible evidence into consideration when on a proper approach to the evidence he should have realised that only the evidence of the accomplice was relevant and then having regard to the cautionary rule in respect of such evidence he should have acquitted the appellant.


[3] The evidence of the accomplice is to the effect that he agreed with the appellant to pay the appellant who was a traffic officer N$400 in return for a driver’s license and indeed paid him the N$400 in cash. According to appellant who denied this agreement he indeed tested the competence of the accomplice in respect of the driving of a vehicle. The accomplice was not warned pursuant to the provisions of section 204 of the Criminal Procedure Act.


[4] Mr Kandi who knows appellant as a colleague and fellow member of the police force testified that he was on duty at Opuwo on the relevant day with the appellant and other police officials. The next day he reacted to certain information and went to the location where persons are tested for driving licenses and from the documentation determined that two persons were certified as being competent to receive licenses who, as far as he was aware of, were not tested the previous day. He then realised from these documents that these two persons were certified competent by appellant. Where a person is certified competent the official so certifying must in addition to his signature also affix a certain number to the document referred to in evidence as the “infrastructure no.”. The number affixed on the two documents certified by appellant was that of their commander for the day, Sergeant Routh. The witness testified that he approached the accomplice who informed him he was never tested and further informed him of the agreement he had with the appellant to pay him N$400. In one of the documents certified by appellant a code 11 license was authorised. This witnesses approached Sergeant Routh who indicated that on the day in question only one person passed the driving test and it was not either of the persons certified as competent by appellant nor was there anyone who was tested for a code 11 license.


[5] Sergeant Routh testified that he was in charge on the relevant day and that appellant was present as one of his subordinates. He said appellant was instructed to conduct the theoretical tests for learners drivers. He himself did the practical testing for drivers licences and of the eight persons he tested he passed one namely a Constable Samuel and this was for a light motor vehicle. He handed in a list of the people he tested and the names of the two persons referred to by Mr Kandi does not appear on this list. Sergeant Routh testified that appellant was not suppose to do the practical test on that day and was in any event not entitled to test anyone for a heavy motor vehicle as he was not qualified to do this. He indicated that he did not enter his “infrastructure no” on the two documents certified by appellant nor not authorise it’s use by the appellant.


[6] Appellant gave evidence, denied the bribe, said he was authorised by Sergeant Routh to use his “infrastructure no.” and indeed on the day in question tested the two people to whom his signature related. The second person involved and certified to be competent by the appellant was not called as a witness.


[7] I have summarised the evidence above so as to illustrate that I do not agree with the submission that only the evidence of the accomplice was relevant in considering the guilt or otherwise of the appellant. In my view the evidence of both the other two prosecution witnesses was highly relevant. They establish that appellant did not conduct any physical practical testing that day yet certified two persons competent to receive licenses, one of which he was not even qualified to test. He furthermore used the “infrastructure no” of Sergeant Routh instead of his own in his mentioned certification. One of the persons he certified competent was the accomplice who he did not test that day on the version of Mr Kandi and Sergeant Routh. This corroborated the evidence of the accomplice that he was not tested. The question arises why would appellant certify people competent to be issued driving licences if he did not test them. This leads further credence to the accomplice’s evidence that he paid the appellant.


[8] The magistrate was fully aware of the dangers inherent in the evidence of the witnesses for the prosecution. He explicitly states that if each is taken in isolation it might not have been enough. He looks at it cumulatively as is evident from the following extract from the judgment.


“The sum total of the evidence presented in court is however something completely different. It undoubtedly points towards accused’s guilt. I cannot fathom any other rational explanation for the turn of events and for such incriminating evidence. If surely the Mbendura was tested on that day and was awarded a pass why would he come to court and deny having been tested at all? That would defy logic. Why would accused’s work mates come and swear that the accused person never conducted any driving tests on the day in question? Why would they also indicate that the accused was not authorized to perform any tests on that particular day? Why would Routh deny ever authorizing accused to use infrastructure number?”


[9] I agree with the magistrate that the appellant’s evidence could safely be rejected as false beyond reasonable doubt. This could be done without any reference to what the investigation in relation to the other person who was certified competent by appellant led to. The evidence I refer to above was sufficient to sustain a conviction and it would serve no purpose to decide whether the evidence as to what the other person told Mr Kandi is relevant and/or admissible or not. For the purpose of this judgment I have ignored it.


[10] The cumulative effect of the evidence is such that I am of the view that the failure to warn the accomplice in terms of the Criminal Procedure Act cannot be said to have had any prejudicial or potentially prejudicial effect on the administration of justice or to the appellant in his case. As I’ve already indicated the magistrate was fully aware of the caution with which to approach the evidence of the witnesses and that the cumulative effect of the evidence was of such a nature that his finding cannot be faulted.


[11] As already indicated the appellant was a member of the police force when the offence was committed. Prior to sentencing he informed the magistrate that he was 40 years old, married, had no children and elderly parents whom he supported. He requested that a fine be imposed as a sentence.


[12] Although this Court was not provided with reasons in respect of the sentence I similarly see no reason to interfere with it and it certainly is not shockingly inappropriate as submitted on behalf of the appellant. It must be borne in mind that the appellant was a police officer who abused his position for personal gain and that the offence is “an ugly offence strikingly cancerously at the roots” of a just society “and is calculated to deprive society of a fair administration”. It is furthermore “an insidious crime difficult to detect and more difficult to eradicate”. The Courts have thus regarded it with abhorrence and have acted strongly where faced with it. (See S v Nacker 1975 (1) SA 583 (A) at 586, S v Kelly 1980 (3) SA 301 (A) and Simon Nakale Mullete v S quoted on behalf of the Respondent)


[13] In the result the appeal is dismissed.




FRANK, A.J.


I agree


VAN NIEKERK, J.




ON BEHALF OF APPELLANT Mr Mostert

Instructed by: Neves Legal Practitioners


ON BEHALF OF RESPONDENT Mr Muvirimi

Instructed by: Office of the Prosecutor-General

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