Court name
High Court Main Division
Case number
CA 70 of 2012
Case name
Sankwasa v S
Media neutral citation
[2013] NAHCMD 249
Judge
Ueitele J
Unengu AJ

















HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT






CASE NO.: CA 70/2012





In
the matter between:





LAZARUS
LISWANISO SANKWASA
.............................................................APPELLANT





vs





THE
STATE
..................................................................................................RESPONDENT





Neutral
citation: Sankwasa v State (CA 70/2012) [2013] NAHCMD 249 (23
August 2013)





CORAM:
UEITELE,J et UNENGU AJ





Heard
on:
22 February 2013


Delivered
on: 23 August 2013






Flynote:







Fundamental rights
- Right of accused to a fair trial in terms of Article 12 of the
Namibia Constitution - Admission of evidence – evidence
allegedly obtained in breach of the Constitutional rights guaranteed
under Article 12 of the Namibia Constitution - Fairness an issue
having to be decided upon facts of each case by trial Judge - At
times fairness might require that evidence unconstitutionally
obtained be excluded - But there will also be times when fairness
will require that evidence, although obtained unconstitutionally,
should nevertheless be admitted







Criminal procedure -
Evidence - Failure by accused to give evidence - Accused not
obliged to give evidence in his defence - However, guilt of accused
could still be proved if weight of evidence against him was
sufficient.







Criminal
procedure -
Trial - Irregularity in
- Effect thereof - Constitutional irregularities - Test proposed by
common law is adequate in relation to both constitutional and
non-constitutional errors - Where irregularity so fundamental that it
could be said that in effect there had been no trial, conviction to
be set aside - Where irregularity less severe then, depending on its
impact on the verdict, conviction should either stand or be set aside
on the merits.







Summary:







The court a quo
had convicted the appellant, an employee of Namdeb in Oranjemund, of
theft of diamonds from Namdeb, in contravention of the Diamonds Act
13 of 1999. It was common cause that when the appellant commenced
employment with Namdeb, he underwent an induction program in regard
to the security system at Namdeb and he had signed a declaration that
he was familiar with the security measures. The appellant had pleaded
not guilty and had not given evidence in his defence. On appeal the
questions that the court had to decide are whether the evidence in
the court a quo was obtained in breach of the Appellant’s
Constitutional Rights as enshrined in Chapter 3 of the Namibia
Constitution and the consequences that follow if it was so obtained;
and whether the court a quo erred when it found that the
unpolished diamonds that were eventually valuated were the same
unpolished diamonds removed by the appellant from under his trouser.







Held further that
when the appellant passed through the Scanex x-ray facility he was
not a suspect and it is at that time that the foreign objects were
detected in the pelvic area of his body. So at that time he was a
non-suspect and there was, therefore, no duty on the Namdeb security
officers to advise him of his Constitutional rights.



Held further
that there was no duty on Detective Inspector Husselman in the
circumstances of this case to inform the Appellant of his
Constitutional rights under Article 12. Consequently the police
officer did not infringe any of the Appellant’s constitutional
rights guaranteed in Article 12 of the Namibian Constitution.







Held further that
the appellant has failed to discharge the onus resting on him to
demonstrate a violation of any of his Constitutional rights. That the
admission of the 12 unpolished diamonds in evidence, in all of the
circumstances of this case, would not render the trial unfair and
bring the administration of justice into disrepute.







Held further
that the appellant had the duty to rebut the evidence led by the
State witnesses and his failure to do so only leads to the conclusion
that the prosecutor's case was sufficient to prove the elements of
the offence.









ORDER









The appeal against
conviction is dismissed.









JUDGMENT









UEITELE J (UNENGU J
concurring):







[1] The appellant was
arraigned on a charge of contravening section 74 of the Diamond Act,
19991
(theft of 14 unpolished diamonds with a total mass of 120.51 carats
and valued at N$1,449,007-93) in the Regional Court held at
Keetmanshoop. The appellant also faced an alternative charge of being
in
unlawful
possession of 14 unpolished diamonds with a total mass of 120.51
carats, valued at N$1,449,007-93), in contravention of Section 30 (1)
of the Diamond Act, 1999.



[2] The appellant pleaded
not guilty to both the main charge and the alternative charge. The
appellant provided no plea explanation as contemplated in section 115
of the Criminal Procedure Act, 19772
and he challenged the State
to
prove each and every element of the offence as if specifically
traversed.’







[3] In support of its
case, the State called five witnesses. The appellant on the other
hand closed his case without giving evidence. He was subsequently
found guilty and convicted of theft of 12 unpolished diamonds valued
at N$1,428,720-97. On 19 March 2012 the appellant was sentenced to
pay a fine of Two Hundred and Seventy Five Thousand Namibia Dollars
(N$ 275 000) or five years imprisonment plus six years' imprisonment
which are wholly suspended for a period of five years on condition
that the appellant is not convicted of the offence of theft or found
in possession or to be dealing unlawfully in unpolished diamonds
during the period of suspension.







[4] It is against this
conviction that the appellant now appeals. Before I deal with the
grounds and merits of the appeal I will briefly set the background
that led to the appellant’s arrest, charge and conviction.







The background facts







[5] The appellant was
employed at Oranjemund by Namdeb Diamond Corporation (Pty) Ltd
(Namdeb) as a safety officer. He worked inside the Namdeb Mining
Licence Area No 1. This area is fenced off and employees entering or
returning from the mining area can only enter or exit through the
mines’ access control system. On 28 May 2007 the appellant
proceeded through the access control system and there he was
arrested. In order to appreciate how the appellant was arrested I
find it necessary to briefly explain the procedure and the 'route' an
employee would be following upon leaving the mining area.







[6] Any person considered
for employment with Namdeb at Oranjemund must, before signing a
contract of employment with the mine, attend an induction course
which, inter alia, includes a 'pep talk' on the security
policy of the mine, and which is explained to each potential
employee. Once he or she understands its content, then a declaration
to that effect must be signed. Non-compliance with the security
policy is regarded to be a contravention of the Diamond Act, 1999.








[7] Once a person is
offered employment, he or she is handed an 'employee card',
reflecting the personal particulars of the employee. If that person
is expected to enter the mining area, he or she will be issued with a
key card, which grants him or her access to that area. When exiting
the mine, the person, must exit through the Scanex x-ray facility
which is equipped with three or four x-ray machines. When the person
goes through the x-ray machines he or she is scanned or x- rayed or
they sometimes get a dummy x-ray. A dummy x-ray is when a person goes
through the x-ray machine but he or she is not actually x-rayed or
scanned.







[8] Once a person is
scanned or x-rayed the scanned image of that person appears on a
video monitor of a security officer. After the person is x-rayed he
or she proceeds to what is called a holding cubicle. The person is
then escorted by a security officer from the holding cubicle to a
search room. In the search room a physical search is conducted on the
body of the person. Having briefly set out these procedures I will
now turn to the evidence as presented in the court a quo.







[9] The State witnesses
who testified on the events of 28 May 2007 are Karel Lesley du Toit,
Epafras Jambeinge Simon, Johannes Husselman, Filipus Alugodhi and
Maria Elizabeth Louw.







[10] Mr Du Toit testified
that he is the investigations security superintendent and in charge
of the investigation section at Namdeb’s security department.
He related the events of 28 May 2007 to the court a quo as
follows:








  1. On that day the
    employees of Namdeb who were exiting mining area no. 1 passed
    through the Scanex x-ray facility. He testified that he instructed
    the investigation officers to stop them all after they had passed
    through the Scanex x-ray facility and to search them and reintroduce
    them through the Scanex x-ray facility. The reintroduction process
    entailed the taking back of the persons to the x-ray machine and the
    person is then actually scanned or x-rayed.









  1. He was then contacted by
    senior security officer Epafras Jambeinge Simon who informed him
    that a person (the appellant) searched by them indicated that he had
    a running stomach and wanted to use the toilet. He instructed senior
    security officer Simon not to allow the appellant to go to the
    toilet until after he had been reintroduced through the Scanex x-ray
    facility. The appellant was escorted through the Scanex x-ray
    facility and an image was detected in his pelvic area.









  1. When the security
    officers noticed the foreign objects on the body of the appellant
    they took him to the search room. The witness (Mr Du Toit) then went
    to the search room where the appellant was and he (witness) called a
    certain Detective Inspector Husselman. He instructed the security
    officer in the search cubicle not to search the appellant until
    Inspector Husselman had arrived.









  1. When Inspector Husselman
    arrived in the search room, he was shown the footage on the monitor,
    he introduced himself and detective constable Alugodhi to the
    appellant, he spoke to the appellant and enquired from the appellant
    whether he had anything in his possession that he would like to
    remove and also whether he wanted to say anything before they
    conducted the search. The appellant indicated in the affirmative
    that he would like to remove an object from his body. He (appellant)
    also asked whether the video that was displaying in the search room
    was being recorded and whether anybody (apart from the persons
    present in the search room) else was watching the image. When he
    received answers to those questions, the appellant thereafter
    reached with his hands under his trouser in the area of his private
    parts and from there removed a wrapped parcel and put the parcel in
    a bowel that was on the table.









  1. Inspector Husselman in
    the presence of the appellant then placed the parcel in a brown
    envelope and sealed the envelope. The envelope was signed by
    Inspector Husselman and the appellant also countersigned it. The
    appellant was thereafter escorted to the investigations office where
    the police officer and the investigation officer opened the parcel
    in the presence of the appellant. Thereafter the parcel was again
    sealed and locked away in the Protection Resources Unit's (PRU)
    safe, which was in a security strong room equipped with an alarm and
    a double lock system on the door. For security reasons, two
    different persons hold different keys giving access to the strong
    room. The PRU officer can also only get access to their safe in the
    presence of Namdeb’s security officers. After the parcel was
    locked away in the safe the investigation team then went to the
    appellant’s office where they also conducted a search of the
    Appellant’s office.








A video recording was
also made covering the events that transpired in the search room. The
video recording formed part of the record and I had the opportunity
to view it.







[11] Epafras Simon's
account of the events of 28 May 2007, is materially identical to that
of Du Toit regarding the observations made on the appellant as he
proceeded through the Scanex facility, the reintroduction to the
Scanex facility, the removal of the objects by the appellant from
under his trouser and up to the stage where appellant was escorted to
the investigation office. This witness also testified how they
conducted a search of the appellant’s office and the object
they found under a cupboard in the appellant’s office.







[12] Former Detective
Inspector Johannes Husselman testified that during May 2007 he was
attached to the Namibian Police’s Protected Resources Unit at
Oranjemund. He testified that on the morning of 28 May 2007 he and a
certain detective constable Alugodhi were at the offices of the
Namdeb investigation security offices. While at that office he
received a call from Coordinating Security Officer Karel Du Toit who
summoned him to the search room (search cubicle no.4). When he
arrived at the search cubicle, Coordinating Security Officer Karel Du
Toit conveyed to him what had led to the holding of the appellant in
the search cubicle. Video footage of the said incident was shown to
him, whereafter he introduced himself and detective constable
Alugodhi to the appellant. His evidence from that point corroborated
that of Du Toit regarding the removal of the objects by the appellant
from under his trouser and up to the stage where appellant was
escorted to the investigation office.







[13] Detective Inspector
Husselman further testified that in the investigation office he
removed the sealed envelope from his briefcase enquired from the
appellant whether the envelope was the same envelope that was put in
the briefcase during the search in the search cubicle and whether one
of the two signatures on the envelope was his. After he confirmed
that the envelope was the same envelope and that one of the
signatures was his, he (Husselman) proceeded to open the envelope and
removed the wrapped parcel from the envelope. He unwrapped the parcel
and inside the bigger parcel there were three smaller wrapped parcels
he also unwrapped the three smaller parcels and from those three
parcels he removed a total of twelve objects. He then put the objects
in three different smaller envelopes marked the three smaller
envelopes as (1, 2 and 3), sealed the envelopes with a red police
seal. He then placed these three sealed envelopes in one bigger
enveloped and also sealed that envelope with a red police seal. He
further testified that the process took place in the presence of the
appellant. He thereafter placed the sealed envelope in the PRU safe
and it is only after that, that he arrested the appellant for theft
of and possession of unpolished diamonds. After he was arrested
appellant was accompanied by detective constable Alugodhi and the
Namdeb security officers to his office inside the mine. He
(Husselman) remained at the offices of the crime investigations unit.







[14] Detective Inspector
Husselman continued and testified that while he was still at the
office of the crime investigation Unit, he was contacted by Senior
Security Officer Simon Epafras who informed him that the search at
the office yielded positive results. The objects found at the
appellant’s office were in a sealed envelope and that envelope
was handed to Detective Inspector Husselman by detective constable
Alugodhi. The appellant was then taken to the police cells where he
was detained. The following day the sealed envelope was opened and
two objects were found. The objects were then sealed in a smaller
envelope and marked as parcel number 4.3.0558. He then removed the
big envelope containing the three small envelopes opened it and added
the envelope marked as parcel number 4.3.0558. He thereafter wrote on
the envelopes 1, 2, 3 and 4 and put the envelopes back into the PRU
safe. The envelope was later taken from the safe after the necessary
paper work was done and flown to Windhoek for the evaluators to
evaluate the objects. Detective inspector Husselman furthermore
testified that he personally handed the envelope containing the
smaller envelopes to Chief Inspector Elizabeth Maria Louw and she is
the person who flew with envelope to Windhoek.







[15] The evidence of
detective inspector Husselman were in material respects corroborated
by detective constable Alugodhi.







The grounds of appeal
and the question to be decided







[16] On 30 March 2012 the
appellant filed a notice of Appeal against his conviction. He sets
out grounds upon which he bases his appeal in the notice of Appeal as
follows:







1. That the learned Magistrate
erred in law or on the facts in finding that the State has proved
(sic)
beyond reasonable doubt that the appellant contravened section 74 of
the Diamond Act 1999 (Act 13 of 1999). In doing so, the Learned
Magistrate erred in that he,
inter
alia
, gave no,
alternatively, insufficient weight and/or consideration to:









    1. the distinct separate elements
      (requirements) that the State have to prove to secure a conviction
      of a contravention of section 74 of the Diamond Act 1999 (Act 13 of
      1999);











    1. the version of the appellant as put
      to the relevant state witnesses during cross-examination.











    1. the material contradictory versions
      originating from different state witnesses during testimony.











    1. the nature, effect and purpose of
      the chain of custody ad those material short comings and
      discrepancies pointed out by the accused in cross examination and
      argument.











    1. the uncontested evidence that the
      police obtained incriminating evidence which originated from the
      accused in a process of willful and flagrant disregard of the
      accused constitutional rights to remain silent, being legally
      represented, not to incriminate himself, and being properly
      informed of the existence of such rights and afforded an
      opportunity to waive such rights.











    1. the admission and consideration of
      evidence obtained in violation of those Article 12 Constitutional
      rights referred in 1.5 hereinabove and convicting the accused on
      such inadmissible evidence.’








[17] Mr Nyambe who
appeared for the respondent raised a point in limine namely
that the grounds of appeal set out in sub-paragraphs 1.1 to 1.4 of
the Notice of Appeal do not meet the requirements of Rule 67(1) of
the Magistrates’ Court Rules and should therefore be
disregarded. I do not find it necessary to decide that point because
the thrust of Mr Krüger’s (who appeared for the appellant)
arguments was on the alleged unconstitutionally obtained evidence and
the chain of possession of the objects (which turned out to be
unpolished diamonds) found on the Appellant.







[18] As I have indicated
in the preceding paragraph, Mr Krüger pinned his thrust of
argument on two grounds only namely; that the court a quo
should not have admitted the evidence of the objects (which turned
out to be unpolished diamonds) that the appellant removed from under
his trouser because, so the submission goes, the police obtained
incriminating evidence which originated from the accused in a process
of willful and flagrant disregard of the accused’s
constitutional rights to remain silent, being legally represented,
not to incriminate himself, and being properly informed of the
existence of such rights and afforded an opportunity to waive such
rights; and that the State failed to prove that the unpolished
diamonds that were eventually valuated were the same diamonds that
were removed by the appellant from under his trouser.







[19] The questions that
we have to decide in this appeal are therefore:








  1. whether the evidence in
    the court a quo was obtained in breach of the Appellant’s
    Constitutional Rights as enshrined in Chapter 3 of the Namibia
    Constitution and the consequences that follow if it was so obtained;
    and








(b) whether the court a
quo
erred when it found that the unpolished diamonds that were
eventually valuated were the same unpolished diamonds removed by the
appellant from under his trouser.







[20] In order for us to
resolve the first question will require of us to outline some
principles of constitutional law as regards the admissibility or
non-admissibility of evidence obtained in breach a person’s
constitutional rights.







Were the
Constitutional Rights of the Appellant infringed?







[21] Mr Krüger’s
who appeared for the appellant amongst others submitted that:







(15) The appellant was a
suspect under investigation in a serious matter when the security
personnel of Namdeb apprehended him. The appellant was considered by
Namdeb personnel to be a suspect in respect of whom criminal
misconduct was suspected. They obviously foreseen
(sic)
that criminal prosecution was reasonably expected and for that
purpose they decided to summon experts on the particular subject, to
wit, Protected Resources members of the Namibian Police to proceed
with investigating the matter.







[16] Chief Inspector Husselman was not
only very experienced in rank and years, but he was attached to a
specialized unit of the Namibian Police. The Public expects due
compliance with the law from individuals appointed in these
capacities. At all times relevant to the apprehension of the
appellant he knew and foresaw that it was a serious matter which may
lead to arrest and detention. He further knew and appreciated at the
time that he was about to obtain (potentially) incriminatory evidence
from a suspect who in all probability will be standing trial on a
serious matter which may suggest a heavy penalty.







[17] The incriminating evidence, which
originated from the appellant, was not obtained freely and
voluntarily and without undue influence. Appellant had not been
warned or informed of his constitutional rights, or warned according
to the Judges rules and neither was he afforded any opportunity to
engage the services of a legal practitioner. It is thus as a
consequence evident that the appellant could not appreciate and
understand his rights, or the consequences of his conduct, which
renders a waiver thereof (if any) a nullity.







[18] The State’s own evidence
proves a complete lack and willful disregard for compliance with all
the admissibility requirements required by law to lawfully admit
incriminating evidence. The fact that these processes were executed
by senior police officials, attached to a special branch, makes the
misconduct very serious and inexcusable.







[22] I find it
appropriate to in detail quote the Constitutional provisions which
have a bearing on the matter at hand for me to decide whether the
appellant’s Constitutional rights were infringed or not. I will
below quote the relevant provisions:








  1. The first Constitutional
    provision I regard to be relevant to this appeal is the article
    dealing with human dignity. Article 8 reads as follows:




Article 8: Respect for Human
Dignity








  1. The dignity of all persons shall be
    inviolable.








(2) (a) In any judicial proceedings or
in other proceedings before any organ of the State, and during the
enforcement of a penalty, respect for human dignity shall be
guaranteed.







(b) No persons shall be subject to
torture or to cruel, inhuman or degrading treatment or punishment.’








  1. The second
    Constitutional provision I regard to be relevant to this appeal is
    the article dealing with arrest and detention. Article 11(1) reads
    as follows:








Article 11: Arrest and
Detention








  1. No persons shall be subject to
    arbitrary arrest or detention.’









  1. The third Constitutional
    provision I regard to be relevant to this appeal is the article
    dealing with fair trial. Article 12 (1) reads as follows:








Article 12: Fair Trial








  1. (a) In the determination of their
    civil rights and obligations or any criminal charges against them,
    all persons shall be entitled to a fair and public hearing by an
    independent, impartial and competent Court or Tribunal established
    by law: provided that such Court or Tribunal may exclude the press
    and/or the public from all or any part of the trial for reasons of
    morals, the public order or national security, as is necessary in a
    democratic society.









  1. A trial referred to in Sub-Article
    (a) hereof shall take place within a reasonable time, failing which
    the accused shall be released.








(c) Judgments in criminal cases shall
be given in public, except where the interests of juvenile persons or
morals otherwise require.







(d) All persons charged with an
offence shall be presumed innocent until proven guilty according to
law, after having had the opportunity of calling witnesses and
cross-examining those called against them.







(e) All persons shall be afforded
adequate time and facilities for the preparation and presentation of
their defence, before the commencement of and during their trial, and
shall be entitled to be defended by a legal practitioner of their
choice.







(f) No persons shall be compelled to
give testimony against themselves or their spouses, who shall include
partners in a marriage by customary law, and no Court shall admit in
evidence against such persons testimony which has been obtained from
such persons in violation of Article 8(2)(b) hereof.’








  1. The fourth
    Constitutional provision I regard to be relevant to this appeal is
    the article dealing with privacy. Article 13 reads as follows:








Article 13: Privacy








  1. No persons shall be subject to
    interference with the privacy of their homes, correspondence or
    communications save as in accordance with law and as is necessary in
    a democratic society in the interests of national security, public
    safety or the economic well-being of the country, for the protection
    of health or morals, for the prevention of disorder or crime or for
    the protection of the rights or freedoms of others.









  1. Searches of the person
    or the homes of individuals shall only be justified:





  1. where these are authorised by a
    competent judicial officer;









  1. in cases where delay in obtaining
    such judicial authority carries with it the danger of prejudicing
    the objects of the search or the public interest, and such
    procedures as are prescribed by Act of Parliament to preclude abuse
    are properly satisfied’. {My Emphasis}








[23] It is not Mr
Krüger’s case that the Appellant’s right to human
dignity or not to be arbitrary arrested or detained was infringed.
His argument was that the rights conferred in Article 12 (1) of the
Namibian Constitution were infringed. The first issue in this case
therefore is whether the evidence of the unpolished diamonds was
obtained in a manner that breached the appellant’s rights under
the Article 12(1) of the Namibian Constitution.
Mr
Krüger’s arguments quoted above are that the police
breached Appellant’s
Constitutional
rights by failing to advise him of his right to speak to
a
legal
practitioner of his choice
contrary to
Article 12(1)(
e),
before the search that led to the production of the unpolished
diamonds that are the subject of the charges. He also submitted that
the court
a quo erred
by admitting in evidence of the unpolished diamonds contrary to
Article 12 (1)(
f).







[24] The
threshold question is at what point and under which circumstances a
person must be informed of his right to have a legal practitioner
present, the right to remain silent and the right not to incriminate
himself.







[25] In the course of his
submission Mr Krüger analyzed and referred us to no less than
two dozens of decisions of the various courts in South Africa and
Canada. I do not intend to embark on the same exercise as Mr Krüger.
It will suffice for the purpose of this judgment that the decisions
which I regard as the best exposition of our law on the issues that
are confronting me and with which decisions I fully agree are; the
decision of Hoff, J in
S
v Malumo and Others (2)3

and the ruling of
Satchwell, J in
S
v Sebejan and Others,4
and the
decision of Mahommed CJ in
S
v Shikunga and Another
5.



[26] The brief facts in
the
S v
Sebejan and Others,
matter
are as follows:
The
accused were charged with murder in the High Court of South Africa.
During the course of the trial an issue arose regarding the
admissibility, for purposes of cross-examination of accused No 1, of
a statement made by that accused to a police officer. It appeared
that the accused, the wife of the deceased, had been approached by a
policeman, at her home. He asked her to make a statement. She made
the statement freely and voluntarily and had read the statement
herself. During the trial, accused No 1 stated that she had lied in
that statement. When counsel for accused No 3 attempted to
cross-examine accused No 1 on the statement, counsel objected to the
admissibility thereof, arguing that at the time of making the
statement the accused was a suspect, in that a prior statement
(statement B) had been taken by the same policeman from another
person in which certain allegations were made against accused No 1.
It appeared that this statement was commissioned within minutes of
the other statement. As accused No 1 had not been warned of her
rights to legal representation it was contended that this failure
violated her constitutional rights and rendered the statement
inadmissible. It was later determined that the statement made by
accused No 1 was taken in the morning but commissioned later that
evening in her absence and after statement B was taken. The issues
that confronted the Court were amongst others the question whether
accused No 1 was a suspect at the time she made the statement and
thus enjoyed the constitutional rights to not incriminate herself and
to her right to consult her legal practitioner prior to making the
Statement. The court held that a suspect was one about whom there was
some apprehension that he or she may be implicated in the offence
under investigation and, it could further be, whose version of events
was mistrusted or disbelieved.







[27] Satchwell, J6
after setting out some Constitutional rights of 'detained, arrested
and accused persons' said the following as regards a suspect.







Accused No 1 was neither an
arrested person nor an accused person at the time that she made the
statement to Sergeant Kasipersad on 25 July 1995. She did not
understand herself to be so. She says that she was visited at her
home, went into a bedroom for privacy and was asked to make a
statement about 'what happened over the past few days with Dan (her
husband)'. She informed the Court she was arrested some four to five
days after the death of her husband, which is some two to three days
after making the statement. This is confirmed by Kasipersad.







At first reading it would therefore
appear that the provisions of the relevant section in the Bill of
Rights are not applicable to accused No 1 insofar as she was not an
'arrested or detained person’.







[28] The learned judge
continued and said7:







The basis of the objection to the
statement being used in cross-examination is that it should not be
inadmissible in this Court since it is argued that the accused was a
suspect and was not warned of her constitutional rights. The
questions for decisions are therefore:







(a) What is a suspect?



(b) What rights accrue to a suspect?



(c) Was the accused a suspect at the
relevant time?







What is a suspect?







The Concise Oxford Dictionary defines
'suspect' as 'subject to or deserving suspicion or distrust; not
sound or trustworthy'.







' "Suspect" and "suspicion"
are words which are vague and difficult to define. Dictionary
meanings and decided cases were quoted to the Court as to the meaning
of these words. Save for saying that these suggest that suspicion is
apprehension without clear proof, I do not intend to deal with the
meaning of "suspect". 'R v Van Heerden 1958 (3) SA
150 (T) at 152D. In this case it was argued suspicion is an imperfect
state of mind falling short of proof. The Oxford Thesaurus offers
synonyms for the verb 'suspect' of 'disbelieve, doubt, mistrust,
harbour or have suspicions about' as also 'questionable, dubious'.
'Suspicion' is synonymous with 'doubt, misgiving, mistrust, qualm,
apprehension' as also 'notion, inkling, glimmer, tinge, hint'…







It would appear that a suspect is
one about whom there is some apprehension that she may be implicated
in the offence under investigation and, it may further be, whose
version of events is mistrusted or disbelieved.’
{My
Emphasis}







Rights of suspect







Clearly statements must be freely and
voluntarily made when made by a suspect. The suspect therefore has
the right not to be maltreated, unduly influenced or coerced in any
way.







The 1931 Judges' Rules were issued by
the executive authorities as administrative directions to be observed
by the police. Failure to obey them does not itself render a
confession inadmissible, yet these rules (although they are regarded
as merely administrative rules of fairness) are not completely
without effect: breaches of the rules may be of weight in determining
whether a confession had been voluntarily made without undue
influence.







Judges' Rule 1 provides: 'questions
may be put by policemen
to persons whom they do not suspect of
being concerned in the commission of the crime under investigation,
without any caution being first administered (my emphasis). Judges'
Rule 2 provides that 'questions may be put to a person who is
under suspicion where it is possible that the person by his answers
may afford information which may tend to establish his innocence. In
such a case cautions should first be administered
.'







In short, non-suspects may be
questioned without any cautions or warnings whereas suspects, even in
circumstances where answers to questions may establish innocence,
should receive the benefit of a caution or warning. The suspect is
treated differently and entitled to certain protective cautions not
afforded to a mere witness.’ {My emphasis}







[29] The above reasoning
was endorsed and followed by this Court (per Hoff) in the case of S
v Malumo8
.
Is the argument of Mr Kruger that ‘The appellant was a suspect
under investigation in a serious matter when the security personnel
of Namdeb apprehended him’ then correct? I do not think so. I
say so for the following reason. When the appellant passed through
the Scanex x-ray facility he was not a suspect, but an employee
following the normal route and process as agreed to between him and
his employer and it is at that time that the foreign objects were
detected in the pelvic area of his body. So at that time he was a
non-suspect and therefore there was no duty on the Namdeb security
officers to advise him of his constitutional rights.







[30] It will be recalled
that after the Namdeb security officer observed that the Appellant
had hidden some objects in his pelvic area they did not question him,
asked him to make any statement or searched him they instead summoned
a member of the Namibian Police’s Protected Resources Unit. Did
the detection of the foreign objects turn the Appellant into a
suspect at that point? Applying the definition of Satchwell, J, that
a suspect is one about whom there is some apprehension that
she may be implicated in the offence under investigation and, it may
further be, whose version of events is mistrusted or disbelieved
’,
I am inclined to hold that although there was no offence under
investigation at that point the Appellant’s conduct was surely
distrusted and he thus became a suspect at that point.







[31] When Detective
Inspector Husselman arrived in the search room and he was shown the
video image which indicated a foreign object in the appellant’s
pelvic area the appellant was in my view a suspect. This is confirmed
by the testimony of Detective Inspector Husselman. He testified that
he formed the suspicion that the appellant may have committed an
offence when he saw the image (of the foreign objects in the
appellants pelvic are) on the monitor.9
Once it is established that the appellant was a suspect his position
is different from that of a non-suspect Satchwell, J10
said the following:







I have already referred to the
position of a suspect from the perspective of the investigating
police person. The distinction between a suspect and an arrested
person from the viewpoint of a suspect deserves examination: firstly
the suspect has not been taken into custody (either by being touched
by the arresting officer or by being forcibly confined); secondly
there has not been a formal notification of the cause of the arrest.







The crux of the distinction between
the arrested person and the suspect is that the latter does not know
without equivocation or ambiguity or at all that she is at risk of
being charged. The suspect may herself have an inkling that she is
mistrusted by the investigating officer; she may even have been told
that she is at some risk of being arrested; but the suspect has not
been placed on terms. Indeed the suspect may have no qualms or
concerns whatsoever and may therefore continue to operate in a state
of ignorance - ignorance that she is mistrusted, may be under
surveillance, that the investigator is enquiring into her actions and
behaviour, that there may be an attempt to develop sufficient
evidence against her. In this situation there is no bliss in
ignorance. The suspect is in jeopardy of committing some careless or
unwise act or uttering some incautious and potentially incriminating
words which would subsequently be used against her in a trial. For an
investigating officer to take a statement from a suspect in these
circumstances would, in my view, be fraudulent of the constitutional
imperative. There is a deception in treating a suspect as no more
than a witness and obtaining information from her under false
pretences in the hope and belief that this can be used to further an
investigation of and against that person. To then rely on that
individual's ignorance and use whatever has been extracted during
this time of deceptive safety in order to initiate or found or
develop a prosecution of such person is inimical to a fair pre-trial
procedure.’







An arrested person has not necessarily
been deprived of all access to civilian help; may not even be in
custody. An arrested person is certainly aware that she is in the
firing line of litigation and the reasons therefor. The arrested
person knows that she and the investigating officer do not enjoy
parity of positions and community of interests. The lines have been
drawn - their interests are inimical to one another. The arrested
person knows the basis for such antagonistic status and is now in a
position to attempt to formulate a response thereto.







The suspect enjoys no such
enlightenment. She may still believe that the investigating officer
and she are confidantes, that the investigator seeks help rather than
ammunition.’







[32] The learned Judge
continued to demonstrate the rationale for the entitlement to legal
representation at the pre-trial stage by quoting from the judgment of
Claasen, J in S v Mathebula and Another11,
as follows:







'An accused is presumed innocent until
proven guilty. The onus is on the State to prove that guilt. There is
no duty on the accused to assist the State in its task. An accused
has the right to remain silent and need not contribute in any way to
the process of supplying or obtaining evidence which tends to prove
his guilt in the form of self-incriminatory oral or written
communication
…[W]henever the State wishes to embark upon
any pre-trial procedure wherein it seeks the co-operation of the
accused and which would result in an erosion of or encroachment into
the accused's constitutional rights, such procedure will have to be
preceded by a repetition of a due warning regarding all of his
relevant s 25 constitutional rights.' {My emphasis}







The learned judge
continued and said:







If the suspect is deprived of
the rights which have been afforded to an arrested person then a fair
trial is denied the person who was operating within a quicksand of
deception while making a statement. That pre-trial procedure is a
determinant of trial fairness and is implicit in the Constitution and
in our common law. How can a suspect have a fair trial where
pre-trial unfairness has been visited upon her by way of deception?







[33] After reviewing some
authorities including the case of
S v Sebejan
and Others
Hoff, J concluded that a suspect
is entitled to the constitutional rights during pre-trial
proceedings. I therefore echo the words of Satchwell, J when he said
‘The constitutional right of an accused person does not only
relate to fundamental justice and fairness in the procedure and the
proceedings at his trial. It also includes the right to be treated
fairly, constitutionally and lawfully by policing authorities and
state organs prior to the trial.’ Also see the case of
S
v Kapika and Others
(1)12
where Mtabanengwe, J (as he then was) referred with approval to the
case of
S v Melani and Others13
where Froneman, J said the following:14







'The right to consult with a legal
practitioner during the pre-trial procedures and especially the right
to be informed of his right, is closely connected to the presumption
of innocence, the right of silence and the proscription of compelled
confessions (and admissions for that matter) which ''have for 150
years or more been recognised as basic principles of our law,
although all of them have to a greater or lesser degree been eroded
by statute and in some cases by judicial decision'' (in the words of
Kentridge, AJ in the Zuma case.)







In a very real sense these are
necessary procedural provisions to give effect and protection to the
right to remain silent and the right to be protected against
self-incrimination. The failure to recognise the importance of
informing an accused of his right to consult with a legal advisor
during the pre-trial stage has the effect of depriving persons,
especially the uneducated, the unsophisticated and the poor of the
protection of their right to remain silent and not to incriminate
themselves. This offends not only the concept of substantive fairness
which now informs the right to a fair trial in this country, but also
the right to equality before the law. Lack of education, ignorance
and poverty will probably result in the underprivileged sections of
the community having to bear the brunt of not recognizing the right
to be informed of the right to consultation with a lawyer.'







[34] The evidence
presented on behalf of the State was that the accused was viewed as a
'suspect' after Detective Inspector Husselman saw the image (of the
foreign object in the Appellant’s pelvic area) on the monitor.
It thus follows as a general rule that he must be informed of his
constitutional rights before he is questioned by a police officer and
before he makes any statement to such officer.







[35] I alluded to the
term general rule in the preceding paragraph for the simple
reason that, the principle that a suspect must be informed of his
constitutional rights is law, but the point at which point the duty
to do so (i.e. to inform a suspect of his rights) is a factual
question. I am of the view that if there is no questioning or request
for a suspect to make any statement or pointing out then there is no
duty on the police officer to inform the suspect of his right to
remain silent, the right to consult a legal practitioner or his or
the right not incriminate himself. It will be noted that the Judges
rules I referred to above (in para 28), state that 'questions
may be put by policemen’.







[36] In the present
matter the evidence is that Detective Inspector Husselman was
summoned to the search room after it was discovered that the
appellant had a ‘foreign’ object in his pelvic area. When
he arrived at the search room Inspector Husselman viewed the image
and proceeded to identify himself to the appellant, he then asked the
appellant whether he wanted to remove anything from him or say
anything before they conducted a search. The appellant enquired
whether there was anybody else who was viewing the procedures and
whether the procedures were being recorded. When he received the
answer that no one except the people in the search room were viewing
the recordings and that the procedures were being recorded the
appellant of his own volition reached under his trouser in the area
of his private parts and removed a wrapped parcel. It is clear that
in this matter the discovery about the presence of the foreign object
was made at the time when the appellant was not a suspect and when
there was no duty on the security officers to inform the appellant of
his Constitutional rights, the appellant was not asked to make any
statement nor was any statement which is inculpatory of him taken
from him, he was also not asked to make any pointing out. I am
therefore of the view that there was no duty on Detective Inspector
Husselman in those circumstances to inform the appellant of his
Constitutional rights under Article 12. I am consequently of the view
that the police officer did not infringe any of the appellant’s
Constitutional rights guaranteed in Article 12 of the Namibian
Constitution.







[37] I am of the view
that the Constitutional right of the appellant which was in danger or
under threat of infringement was the right conferred by Article 13 of
the Namibian Constitution which I quoted in full above ( in paragraph
22). It is not Mr Kruger’s argument and I think correctly so
that the search on the appellant was conducted in violation of his
right guaranteed under Article 13 of the Namibian Constitution. That
Article clearly authorizes the search of a person without
judicial authority in cases where delay in obtaining judicial
authority carries with it the danger of prejudicing the objects of
the search or the public interest, and such procedures as are
prescribed by Act of Parliament to preclude abuse are properly
satisfied. The procedures to search a person or the homes of
individuals are governed by chapter 2 (i.e. sections 19-36) of the
Criminal procedure Act, 1977. Section 22 of the Criminal Procedure
Act, 197715
clearly authorizes the search. It reads as follows:







22 Circumstances in which
article may be seized without search warrant



A police official may without a search
warrant search any person or container or premises for
the purpose of seizing any article referred to in section 20-




  1. if the person concerned consents to
    the search for and the seizure of the article in question, or if the
    person who may consent to the search of the container or premises
    consents to such search and the seizure of the article in question;
    or









  1. if he on reasonable grounds believes-




(i) that a search warrant will be
issued to him under paragraph (a) of section 21(1) if he applies for
such warrant; and



(ii) that the delay in obtaining such
warrant would defeat the object of the search.







[38] In the present
matter there is evidence that when the appellant realized that he was
about to be searched, he intimated that he was having stomach
problems and wanted to visit the toilet. That request was turned down
and there is no further evidence of the appellant’s alleged
stomach problems. In the absence of an explanation by the appellant
the only reasonable inference I draw from this evidence is that the
appellant wanted to dispose of the foreign object hidden under his
trouser.







[39] I am therefore of
the view that the appellant has failed to discharge the onus resting
on him to demonstrate a violation of any of his Constitutional
rights. Even if I am wrong in my conclusion it must be remembered
that Satchwell, J said: ‘It is now well-established that
constitutional enquiries require a 'double barreled' approach:
firstly, one establishes whether or not a fundamental right contained
in chap 3 of the Constitution has been infringed. If not, cadit
quaestio
. Secondly, if there has been a contravention of such a
fundamental right, one has to establish whether such infringement is
justified in terms of s 33(1) of the Constitution.’ The second
leg of the ‘double barrel’ approach was stated as follows
by Hoff, J in the Malumo matter ‘on the authority of
inter alia Namibian case law, where evidence was obtained in
conflict with the constitutional rights of an accused person the
courts have a discretion to allow it or to exclude it.’16







[40] In the matter of S
v Shikunga and Another17

Mahomed, CJ, after a thorough survey of the approaches of several
jurisdictions with regard to this vexed question which included
Canada, United States, Jamaica, Australia and South Africa, concluded
that:



'What one is doing is attempting to
balance two equally compelling claims - the claim that society has
that a guilty person should be convicted and the claim that the
integrity of the judicial process should be upheld. Where the
irregularity is of a fundamental nature and where the irregularity,
though less fundamental, taints the conviction the latter interest
prevails. Where however the irregularity is such that it is not of a
fundamental nature and it does not taint the verdict, the former
interest prevails. This does not detract from the caution which a
court of appeal would ordinarily adopt in accepting the submission
that a clearly established constitutional irregularity did not
prejudice the accused in any way or taint the conviction which
followed thereupon.'18







[41] This general
approach is also in accordance with that adopted in South Africa in
respect of the exclusion of evidence obtained in conflict with
constitutional rights as said by Kriegler, J in the Key v B
Attorney-General, Cape Provincial Division and
Another19
namely that:







'In any democratic criminal justice
system there is a tension between, on the one hand the public
interest in bringing criminals to book and, on the other, the equally
great public interest in ensuring that justice is manifestly done to
all, even those suspected of conduct which would put them beyond the
pale. To be sure, a prominent feature of that tension is the
universal and unceasing endeavour by international human rights
bodies, enlightened legislatures and courts to prevent or curtail
excessive zeal by State agencies in the prevention, investigation or
prosecution of crime. But none of that means sympathy for crime and
its perpetrators. Nor does it mean a predilection for technical
niceties and ingenious legal stratagems. What the Constitution
demands is that the accused be given a fair trial. Ultimately, as was
held in Ferreira v Levin, fairness is an issue which has to be
decided upon the facts of each case, and the trial Judge is the
person best placed to take that decision. At times fairness might
require that evidence unconstitutionally obtained be excluded. But
there will also be times when fairness will require that evidence,
albeit obtained unconstitutionally, nevertheless be admitted. '







[42] In this matter I am
satisfied that the admission of the 12 unpolished diamonds in
evidence, in all of the circumstances of this case, would not render
the trial unfair and bring the administration of justice into
disrepute for the following reasons: It is clear that the information
which Detective Inspector Husselman
received as to the location of the ‘foreign object’ on
the appellant was obtained while the appellant was a non-suspect and
when there was no duty on the Namdeb security officers to inform him
of his Constitutional rights, he was not questioned or asked to make
any statement or give any self-incriminating information, the search
of his person is sanctioned by Article 13 of the Constitution and
section 22 of the Criminal Procedure Act, 1977. I am therefore not
persuaded that the court a quo erred in admitting the evidence
of the 12 unpolished diamonds.







The chain of custody
of the unpolished diamonds.







[43] In this Court Mr
Krüger who appeared for the appellant argued that ‘the
most important shortcoming in the State’s case is the chain of
custody of the diamonds presented by the State and claimed to be
originating from the appellant’. He argued that the State
failed to secure the chain of evidence to prove that what was found
on the appellant was handled, send for testing and proved to be
diamonds. He continued and argued that ‘There is significant
doubt created in the States own case that proves what was discovered
from the appellant and what was depicted on the photos are materially
different objects contained in different wrappings’. Mr Kruger
submissions were based on the alleged contradictions in the evidence
of Mr Du Toit and Detective Inspector Husselman, the contradiction as
regards the type of ‘tape’ in which the parcel removed by
the appellant from his body was wrapped in, how the wrapped parcel
found its way in to the bowel when the video recording shows that the
appellant placed the parcel on the table and not in the bowel when he
removed it from under his trouser and the ease with which the
envelope in which the parcels were sealed could be opened.







[44] The court a quo
dealt with the question of chain of possession of the diamonds at
pages 239 to 249 of the Record. The court a quo in detail and
accurately in my view dealt with all the submissions by Mr Kruger:
The court after the detailed analysis of the evidence and arguments
pertinently remarked, that:







In the present case the
evidence against accused was neither circumstantial nor tenuous it
was direct and cogent evidence of him having been found in possession
of the parcel which later turned out to be a parcel of diamonds. The
video footage the undisputed x-ray image and the photo plan all
support the State’s case in respect of the parcel or
consignment of diamonds found on the accused person as he exited the
mining area, I am satisfied that the State has managed to prove this
case beyond reasonable doubt.'







[45] The court a
quo
rightly referred to the rule that the
appellant's decision not to testify has consequences. I find the
remarks of Mtambanengwe, AJA in the matter of
S
v Auala
20
apposite where he quoted what Lang DP said21
namely that:







'The fact that an accused person is
under no obligation to testify does not mean that there are no
consequences attaching to a decision to remain silent during the
trial. If there is evidence calling for an answer, and an accused
person chooses to remain silent in the face of such evidence, a court
may well be entitled to conclude that the evidence is sufficient in
the absence of an explanation to prove the guilt of the accused.
Whether such a conclusion is justified will depend on the weight of
the evidence…







Our legal system is an adversarial
one. Once the prosecution has produced evidence sufficient to
establish a prima facie case, an accused who fails to produce
evidence to rebut that case is at risk. The failure to testify does
not relieve the prosecution of its duty to prove guilt beyond
reasonable doubt. An accused, however, always runs the risk that,
absent any rebuttal, the prosecutor's case may be sufficient to prove
the elements of the offence. The fact that an accused had to make
such an election is not a breach of the right to silence. If the
right to silence were to be so interpreted, it would destroy the
fundamental nature of our adversarial system of criminal justice.'







[46] The learned judge
continued and referred to the matter of S v Katoo22
where Jafta, AJA criticized the weight attached by the trial judge
'to the defence version which was put to State witnesses under
cross-examination' and remarked further:







'It was treated as if it were evidence
when the trial Court considered its verdict on the merits. As
respondent failed to place any version before the Court by means of
evidence, the Court's verdict should have been based on the evidence
led by the prosecution only.'







[47] In the present
matter the Appellant’s version was not even put to any of the
State witnesses, the cross examination of Mr Kruger of the State
witnesses was based on hypothesis and conjectures and the court a
quo
was correct when it remarked that:







‘…It is being argued that
they [i.e. the envelopes in which the parcels were sealed] were not
temper prove as they could easily be reopened and resealed after
having been initially sealed. It was also argued that the police seal
used was no guarantee against tempering,
where
the argument falters is that there is absolutely no evidence that the
envelopes were tempered with. This is a mere hypothetical argument
with no factual begging from the available facts. At no point did the
Accused suggest that indeed the larger envelop or the smaller
individual envelops were actually opened and resealed in his absence.

To the contrary there is ample evidence from Husselman that each time
that he opened the larger envelop the Accused was present and he
expressed satisfaction that it had not been tempered with. It is one
thing to suggest in the abstract the possibility of reopening and
resealing of envelopes and it is completely different thing to
suggest that was indeed tempered with.’
{My
Emphasis}







[48] The appellant had
the duty to rebut the evidence led by the State witnesses and his
failure to do so only leads to the conclusion that the prosecutor's
case was sufficient to prove the elements of the offence.







[48] In the result I make
the following order.







The appeal against
conviction is dismissed.











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



SFI Ueitele



Judge











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



EP Unengu



Judge



APPEARANCES





APPELLANT:
H
Krüger



of Krüger van Vuuren
& Co





RESPONDENT:
S R Nyambe



Instructed by the
Prosecutor-General
















1Act
13 of 1999.





2Act
51 of 1977.




32007
(1) NR 198 (HC).




41997
(1) SACR 626 (W) (1997 (8) BCLR 1086).




5Infra
footnote 16




6Supra
at 631.




7At
631-632.




8Supra
footnote 3 at 213.




9See
page106 of the Record of proceedings lines 3-10.




10Supra
footnote 4 at 633-634.





111997
(1) SACR 10 (W) at 19.




121997
NR 285 (HC) at 288F – G.




131996
(1) SACR 335 (E).




14I
propose to quote the quotation relied upon by Mtabanengwe J in full
at 347E – H.




15Act
51 of 1977.





16Supra
footnote 3.





171997
NR 156 (SC); or 1997 (2) SACR 470 (NmS) at 171B - D (NR).





18Also
see the case of S v Kandovazu 1998 NR 1 (SC).where the Supreme Court
reaffirmed that approach.




191996
(4) SA 187 (CC) at 195G - 196D.




20S
v Auala 2010 (1) NR 175 (SC) at 182.




21S
v Boesak 2001 (1) SA 912 (CC) (2001 (1) SACR 1; 2001 (1) BCLR 36).





222005
(1) SACR 522 (SCA) ([2006] 4 All SA 348) in para 19.