Court name
High Court Main Division
Case number
CC 36 of 2008
Title

S v Thambapilai and Others (CC 36 of 2008) [2013] NAHCMD 160 (07 June 2013);

Media neutral citation
[2013] NAHCMD 160
Coram
Simpson AJ













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: CC
36/2008













In the matter between:








THE STATE



and



ARUMUGAM THAMBAPILAI
..................................................................1ST
ACCUSED



LINDA SHIPALANGA
..............................................................................2ND
ACCUSED



MARTIN ERIKI
.........................................................................................3RD
ACCUSED



TIMOTEUS AMUTENYA
SAKEUS ..........................................................4TH
ACCUSED



FESTUS SHINDUME
...............................................................................5TH
ACCUSED



GEORGE HATUTALE
(deceased)
..........................................................6TH
ACCUSED



DAVID SHIKALE
(deceased)
..................................................................7TH
ACCUSED



ONESMUS SHEEHAMA
..........................................................................8TH
ACCUSED



HILMA MARTIN (at
large)
.......................................................................9TH
ACCUSED








Neutral citation: The
State v Thambapilai
(CC 36/2008) [2013]
NAHCMD 160 (7 June 2013)








Coram: SIMPSON AJ



Heard: 22 – 26
April 2013



Delivered: 07 June
2013













ORDER



___________________________________________________________________








Application for discharge
in terms of section 174 of the Criminal Procedure Act 51 of 1977 is
dismissed.













RULING








SIMPSON AJ:



[1] Initially there were
13 accused persons of which the state, after the plea was taken,
stopped prosecution against accused 10, 11, 12, 13. As they pleaded
not guilty, they are entitled to a verdict of not guilty so no case
against them has been established.








[2] During the
presentation of the state’s case, accused 6 passed away, and as
a result thereof, prosecution was also stopped. From the outset
accused 7 was not part of the proceedings as he is deceased. Accused
9 was also not part of the proceedings, as she was at large even
before the commencement of this trial.








[3] Therefore, the
accused before court is accused 1, 2, 3, 4, 5 and 8. At the close of
the state’s case, an application in terms of s174 of the
Criminal Parocedure Act (51 of 1977) (hereinafter referred to as the
Act) was brought before this court.








[4] The accused persons
were charged, separately and/or jointly with various counts, ie fraud
alternatively attempted theft, forgery and uttering, attempting to
defeat the course of justice, theft by conversion.








[5] All the accused
pleaded not guilty, whereafter several witnesses testified for the
state. At the close of the state’s case, the defended (accused)
applied for the discharge in terms of section 174 of the Act. This
application was opposed.








[6] It is submitted that
the state had a burden of proving all the charges against all the
accused, and it was intended that the state failed to establish a
prima facie case against all accused. Although acknowledging
that credibility of witnesses at this stage play a limited role, it
was argued that their credibility is a factor that has to be taken
into consideration.








[7] From the outset it
must said that the test of a discharge under s174 differs from that
the court is required to assess the evidence as a whole, including
the probabilities of the particular case.








[8] When considering an
application in terms of s174, the court has a judicial discretion
whether to grant the application or not.








[9] This gives the court
the power at the close of the state’s case where it is clear
that there cannot be a conviction, to discharge accused, on condition
that the court is of the view that there is no evidence upon which a
conviction can reasonably be based. The court therefore has to
determine whether there is lack of evidence, and if so, whether a
discharge should be granted. The court’s discretion must be
viewed subjected to Article 12 of the Namibian Constitution, which
has not rendered the court’s discretion incompetent or
non-existent. The Constitution does not affect the court discretion
when considering section174 application.








[10] It must be expressly
pointed out that Article 12(1)(f) of the constitution proved the
protection against self incrimination to an accused for not being
compelled to give evidence against himself.








[11] When an application
is rewarded, an accused is still left with an option of giving
evidence or to remain silent.








[12] In S v Mqayi,
an unreported case from the Ciskei High Court, White J, stated that
the cornerstone of an open and democratic society, is a system of
justice which is fair both to the accused, the prosecution and the
administration of justice as a whole.








[13] If an accused is
placed on his defence, neither he nor his co-accused is compelled to
testify against him.



[14] An application for a
discharge is governed by s174 of the Act, which states: “‘Accused
may be discharged at close of case for prosecution –‘If,
at the close of the case for the prosecution at any trial, the court
is of the opinion that there is no evidence that the accused
committed the offence referred to in the charge or any offence of
which he may be convicted on the charge, it may return a verdict of
not guilty.’



[15] The words “no
evidence” in s174 means no evidence upon which a reasonable
court, acting carefully, may convict an accused. It is hereby
referred to S v Khanyapa, 1979(1) SA 824 (A) at page 838F; S
v Nakale
2006 (2) NR 455 (HC) at page 457; S v Teek (S v Teek
2009(1) NR (SC)
.








[16] There are different
views regarding the consideration of credibility at the close of the
state’s case. In S v Teek, Brand AJA, on page 5 states
“Somewhat more controversial is the question whether
credibility of the state witnesses has any role to play when a
discharge is sought under this section. But the generally accepted
view both in Namibia and in South Africa, appears to be that,
although credibility is a factor that can be considered at this
stage, it plays a very limited role. If there is evidence supporting
a charge, an application for a discharge can only be sustained if
that evidence is of such poor quality that it cannot, in the opinion
of the trial court, be accepted by any reasonable court. Put
differently, the question remains: is there, having regard to the
credibility of the witnesses, evidence of which a reasonable court
may convict?”








[17] By applying these
principles to the facts in this case before court, it could be
determined whether the evidence adduced during the state’s
case, is sufficient to put the accused on their defence.








[18] Regarding count 1,
that is in respect of accused 1 and accused 2, the accused are
charged with fraud, alternatively theft. It is alleged that the
representation was made to the motor vehicle accident fund (MVAF)
that accused 2 was unemployed, and had no source of income.
Furthermore that the husband of accused 2 earned N$ 3050.








[19] Evidence was led by
the state to that effect. It is also pointed out that the MVAF acted
under this representation.








[20] It is indeed so that
during cross-examination, witnesses were deviating from their
evidence in chief and were also inconsistent. However, the
inconsistencies were not of such a nature that would demolish the
state’s case in its entirety.








[21] It is indeed so that
the claims were mainly dealt with by the personnel of accused no1 at
his office, but coming from the superiority of accused no 1, it is to
be believed that it is on instruction of accused no 1.








[22] Regarding counts
2,3,4,5,6, in respect of accused 1 and accused 3, it is alleged by
the state that the representations were made to MVAF as result that
MVAF ought to suffer a potential of NS 202 875,00. Evidence was led
by the state as to how affidavits came into existence, and apparently
how false information contained in such affidavits. The state led
evidence of witnesses to the effect that they never made these
affidavits.








[23] As a result of such
representation, the MVAF acted thereto.








[24] Regarding counts 7
and 8, it is alleged that accused 1 assisted the complainant in
claiming for compensation from the MVAF. A certain amount was paid by
the MVAF, but not all the money was given/handed over to the
complainant. It is indeed so that the complainant is illiterate and
was not aware of money that was not given to her. However, the
question remains, what happened to this money? Several witnesses
testified to this effect how the complainant came to the office of
accused 1, up to the stage where the money was deposited. It is clear
that there are allot of inconsistencies and irregularities in the
evidence adduced by the state, but as already stated, at this stage
credibility does not determine whether a prima facie case was
established or not.








[25] Respecting count 8,
evidence was led as to how the complainant was told as to the
receiving of money. Even this evidence is questionable regarding
credibility. However the law is clear that credibility only comes
into play if the evidence is of such poor quality that a court must
disregard such evidence.








[26] I am of the opinion,
that in this instance, evidence was placed before court by the state
as to these events, regardless the manner in which this evidence was
scrutinized during cross-examination.








[27] In respect of count
9, it is clear from the evidence that on face value, the accused
attempted to misrepresent to the MVAF as to injuries sustained and
the status of the accused, ie why would they submit a photograph to
the MVAF if the missing arm has nothing to do with the accident.








[28] Although the
defence, during cross-examination, showed to this court as to how the
misunderstanding could have occurred, it is not established as a
fact, as these so called misunderstanding are instructions put to the
witnesses.








[29] In count 10 it is
alleged by the state that accused 1 made misrepresentations to the
MVAF, by submitting statements to the Fund which was not true.
Evidence was adduced by the state that such statements were not made
by the deponents and the contents thereto was not the correct state
of affairs.



[30] Although, during
cross-examination, there were discrepancies, the fact remain that the
MVAF acted on these statements and stood to suffer potential loss due
to such representations.








[31] In respect of count
11, evidence was adduced that an affidavit of Otto Petrus, was never
signed by Otto Petrus. It is therefore clear that the said document
was forged.








[32] Counts 12,13,14,15,
relates to same claim of Erastus Shindume. This claim was attended to
by the office of accused 1, whereby Ndinelao Nangha was assisted by
the office by accused no 1. It is clear from the evidence that the
said Ndinelao Nangha died on 19/2/2001, being the claimant. The state
also presented evidence that accused 1 proceeded preparing the claim
although the claimant already died. Affidavits were drafted in the
name of Ndinelao Nangha, after she died. Such affidavits were
submitted to the MVAF, whereby latter acted thereto.








[33] According to the
evidence led by the state, accused 5 assisted, in that he informed
his aunt, Hilma Kristiaan that she is required at the office of
accused no1. Furthermore, evidence was led by the state that the
money that was paid out by the MVAF, was for a specific purpose, but
did not serve its purpose.








[34] During this trial,
accused 6, whose involvements was also pointed out, passed away.
Nevertheless, the MVAF acted on such false information.








[35] Regarding count 16,
it is clear that the proceedings were stopped by the prosecution
against several of the accused, but not against accused 1 and accused
8. It is also clear from the evidence that accused 8 did not in
itself defraud the MVAF. However evidence was led that the
information provided by accused 8, in the line of duty, was
incorrect. The office of accused no1 then prepared the claim. The
MVAF then acted on such false information. This false information led
to the processing of the claim by the Fund.








[36] It is clear from the
evidence led by the state, although the evidence does not follow in
sequence, although there are allot of irregularities, although there
are various discrepancies, the court is of the opinion that the state
presented a case of prima facie case.























[37] In the result I make
the following order:








The application in terms
of Section 174 is therefore dismissed.


















----------------------------------



Simpson



Acting



APPEARANCES








STATE: E Marondedze



Office of the
Prosecutor-General








FIRST ACCUSED: Mr L Botes



Instructed by Shikongo
law Chambers, Windhoek








SECOND and FIFTH ACCUSED:
Mr Kamanya



Instructed by Directorate
of Legal Aid, Windhoek








THIRD ACCUSED Mr Neves



Instructed by Directorate
of Legal Aid, Windhoek








FOURTH ACCUSED Mr Basson



Instructed by Directorate
of Legal Aid, Windhoek








EIGHTH ACCCUSED Mr
Shikongo



Instructed by Shikongo
Law Chambers, Windhoek