Court name
High Court
Case number
CA 137 of 2007
Title

S v Haikera (CA 137 of 2007) [2008] NAHC 105 (23 June 2008);

Media neutral citation
[2008] NAHC 105





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