Court name
High Court
Case name
Karihab v S
Media neutral citation
[2010] NAHC 77






















CASE
NO.: CA /20


IN
THE HIGH COURT OF NAMIBIA



In the matter
between:



GERHARD
KARIHAB
APPELLANT







versus







THE STATE
RESPONDENT







CORAM:
SHIVUTE
J
et
SIBOLEKA
J







Heard on:
2010 May 4



Delivered on:
2010 June



________________________________________________________________________


APPEAL
JUDGMENT



SIBOLEKA,
J:



[1] Accused
appeared in the District Magistrate Court of Swakopmund on two
charges namely:




  • Possession of
    uranium in contravention of the Mineral




Act 22 of 1992,
and




  • Theft.




[2] He pleaded not
guilty to all charges and after trial he was convicted on the first
charge and sentenced to N$5000,00 or twelve (12) months imprisonment.







[3] Appellant
now appeals against both conviction and sentence. The matter was
argued before this Court on the 12
th
of April 2010. Adv. Kasuto appeared for the appellant and Adv.
Jacobs for the respondent. This Court appreciates their valuable
contribution in this regard.







[4] In 2003
someone gave a note to Moses Skrywer to get him uranium at Rossing.
Moses Skrywer started making inquiries and in the same year he
eventually came to know the appellant through a certain Frans Herman.







[5] Moses Skrywer
gave a note he got from the buyer regarding what he was looking for.
On this note were the letters U8 + U2 respectively. When the
appellant looked at the two notes he said to Skrywer the buyer was
looking for uranium.







[6] Apart from a
note written U8 + U2 which turned out to be powder, there was also a
note for the liquid. Appellant told Moses Skrywer that the liquid
usually accompanies the powder.







[7] Whenever Moses
Skrywer went to meet the appellant at his house, he was always in the
company of Frans Herman.







[8] The
arrangement between Moses Skrywer, Frans Herman and the appellant was
that once the stuff was bought, the three men would then divide the
money among themselves. Moses Skrywer had already been arrested,
convicted for possession of uranium and sentence to:



N$15.000,00 or
twelve (12) months imprisonment. He volunteered to help the police
to crack down all those who were dealing with uranium.







[9] All of the
three men used to go into the appellant’s garage and there
Skrywer would get the alleged uranium.







It was during one
of such visits that Moses Skrywer alerted the police stormed the
appellant’s garage where they were sitting resulting in the
matter now before Court.







Adv. Kasuto raised
the following shortcomings in the findings of the Court below:



[10] It
is the appellants contention that from the day of his arrest on the
24
th
of November 2004 when the alleged uranium was removed from his
garage, he does not know what happened to the stuff. No evidence was
placed before Court
a
quo
to
explain the chain of events from the time the police took the alleged
uranium, up to when it was tested by the expert.







[11] The
Court
a
quo
was
also not told where the stuff was kept or stored, by whom, and under
what conditions. What happened to the stuff after it was impounded
by the police up to the time of the alleged testing. Who handed the
stuff to the expert for
testing.
The Court
a
quo
was
not informed in how many hands the alleged uranium had passed before
it eventually found its way to the testing expert. This link so
argued Adv. Kasuto has not been established before the Court
a
quo
in
order to be subjected to scrutiny and cross examination by the
appellant’s counsel.







[12] Therefore,
argued Adv. Kasuto in the light of the above it cannot be said with
certainty whether the stuff alleged by the expert to be uranium
before the Court
a
quo
was
the same stuff that was removed (impounded by the police) from the
appellants garage at the time of his arrest on the 24
th
of November 2004.







Furthermore, so
argued Adv. Kasuto, it is not known whether from the time the alleged
uranium was impounded and taken away by the police up to time of
testing it was not tampered with to the detriment of the appellant.
It was also alleged by Adv. Kasuto no preventative measures were
taken, amongst others sealing the containers in the presence of the
appellant to avoid contamination that could possibly be caused by
nature, storage, or by somebody adding uranium to the stuff which
originally have had none.







[13]



conclusion of
arguments we dismissed the application for appeal against the
District Magistrates refusal to grant bail to the appellant and
indicated then that reasons for the ruling would be given at a later
stage. These are the reasons.







[2] At the hearing
Mr. Mbaeva appeared for the appellant instructed by the Legal Aid
Directorate and Adv. Small for the respondent. Both of them filed
very helpful heads of argument.







[3] On
the 17
th
of June 2009 the appellant and two others were brought before the
District Magistrate, Windhoek on a charge of robbery. Appellant was
refused bail while his co-accused, 2 and 3 were released on
N$10.000,00 bail each. Represented by Mr. Isaacks, he lodged a
formal bail application on the 25
th
of June 2009, which was dismissed on the 17
th
of July 2009, and he now appeals against the Magistrate’s
refusal to grant him bail.







[4] In a nutshell
the ruling of the Magistrate for refusing bail was stated as follows:







If
an accused who is in custody in respect of an offence referred to in
part 6 of schedule 2 applies under Section 60 to be released on bail
in respect of such offence the Court may notwithstanding that it is
satisfied that it is unlikely that accused if released on bail will
abscond or interfere with any witness for the prosecution or the
police investigation refuse the Application for bail ……….if
in the opinion of the Court it is in the interest of the Public or
the administration of justice that the accused be retained in custody
pending his trial.”







[5] According
to appellants counsel the presiding Magistrate was wrong and had
misdirected herself in holding that it was in the public interest and
that of the administration of justice to refuse bail to the
appellant. He based his argument on the fact that no demonstrations
were organized and the public did not generally rally behind the
security companies. Therefore, argued appellant’s counsel, he
does not understand why a
person
who would most likely be acquitted on the charge; would not abscond
nor interfere with the administration of justice be retained in
custody until his trial.







[6] I will now
look at the allegations against the appellant in this matter.







[7] Appellant
worked for Group 4 Security Namibia, Andimba Toivo ya Toivo Street,
Southern Industrial Area, Windhoek as a Base Security Officer, Cash
in Transit, in charge of the firearms section. He was a supervisor
of the security guards taking care of the company premises twenty
four hours round the clock.







[8] On
the 20
th
of May 2009 appellant allegedly brought two male persons to the
premises and instructed security officers at the entrance not to book
them in the check list or entrance register because according to him,
the two men were police officers who were in his company and as such
it was not necessary for them to enter their particulars in the
register. The entrance security guard could not refuse entrance to
the two strangers because they were in the company of his senior
officer (the appellant) in this matter.







[9] The
appellant, so argued the respondent, being a senior security officer
at the time he so acted, was aware that all unpermitted persons
accessing the no go zone at the security guard duty room have to
enter their particulars in the occurance book, but nonetheless
instructed that the two strangers with him should not enter their
particulars in the security register. Appellant took the two men
into the box control room (strongroom – safe), where he told
the security guard on duty that they were police officers. He later
told
the two men that the name of the security guard on duty in the strong
room was Tobias Nanyeni.







[10] On the day of
the robbery and while the appellant was on duty a security guard
inside the duty room went to the toilet leaving his firearm in the
drawer. When he came back to his guarding post he saw the appellant
immerging there from and his firearm was nowhere to be seen. This
firearm was found after the robbery at the scene where appellant’s
uncle (Claudius Stuurman) also a suspect in this matter, had
committed suicide.







[11] During the
robbery the two strangers who were earlier on brought by the
appellant on the security company premises and introduced as police
officers were identified among the robbers. More so, one of them was
asking about Tobias Nanyeni, a name that was given to the two
strangers by the appellant during an unauthorized entry to the
security company’s no go zone before the incident.







[12] Other
allegations leveled against the appellant are:







12.1 Before the
incident the appellant was seen driving his uncle (Claudius
Stuurman)’s bakkie.



12.2 It is that
same vehicle which was later found on the security company premises
loaded with some bags of stolen money on the day of the robbery.



12.3 On Wednesday
20 May 2009 the appellant allegedly brought two strangers on the
security company’s no go zone, and showed them the safe where
the money was kept. On Sunday 25 May 2009 of that same week the
premises were robbed and money stolen from the said safe.







12.4 On
the day of the alleged robbery appellant removed a credited sim card
from his official cell phone and replaced it with a new one from
where he received messages and made contact with
his
uncle (Claudius Stuurman). This move could be safely seen as aimed
at avoiding detection.



12.5 The
appellant’s uncle, who was also a suspect on this matter had
implicated the latter in his suicide letter (note).



12.6 It is
interesting to note how the appellant tried to play down his
involvement in this alleged offence by insisting to the police that
his uncle be arrested immediately. He even offered to be released so
that he himself can arrest his uncle and bring him to the police
station.



12.7 After the
incident an sms message from a South African cell phone was found on
appellants cell phone printout requesting money from him.







[13] From the
above it is clear that there are indeed allegations which connect the
appellant to the robbery at the complainants premises.







[14] Section 3 of
the Criminal Procedure Amendment Act, Act no. 5 of 1991 reads:







If
an accused who is in custody in respect of any offence referred to in
Part IV of Schedule 2 applies under section 60 to be released on bail
in respect of such offence, the court may, notwithstanding that it is
satisfied that it is unlikely that the accused, if released on bail,
will abscond or interfere with any witness for the prosecution or
with the police investigation, refuse the application for bail if in
the opinion of the court, after such inquiry as it deems necessary,
it is in the interest of the public or the administration of justice
that the accused be retained in custody pending his or her trial.”







[15] O’Linn,
J as he then was remarked about the above amendment in
S
v Du Plessis and Another

1992 NR 74 at 82G:







The
amending legislation was obviously enacted … giving the Court
wider powers and additional grounds for refusing bail in the case of
serious crimes and offences listed in the new part IV of the second
schedule of the Criminal Procedure Act 51/77.”







[16] In my view it
is therefore not necessary that there should have been a public
demonstration and outcry against the suspected robbers of the
security company. The Court has a general duty to protect society
against serious crimes such as robbery. It is usually difficult to
apprehend the suspects and also not easy to get eye witness who saw
it unfolding because of imminent risk to the lives of those who find
themselves at the scene, and immediate surroundings. This is
undoubtably the aspect which goes to the core of the society’s
interest and that of the administration of justice in seeing
suspected suspects apprehended and where necessary denied bail.







[17] In
sum I found no misdirection in the judgment of the Court
a
quo
entitling
this Court to interfere with the decision and the appeal is
dismissed.















___________________


SIBOLEKA
J










I
agree.








___________________


VAN
NIEKERK J







ON BEHALF OF
THE APPELLANT: MR. MBAEVA



INSTRUCTED
BY: LEGAL AID











ON BEHALF OF
THE RESPONDENT: ADV. SMALL



INSTRUCTED
BY: THE OFFICE OF THE




PROSECUTOR-GENERAL