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REPUBLIC OF NAMIBIA

REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT – TRIAL WITHIN A TRIAL

Case no: CC 09/2008

In the matter between:

PAULUS ILONGA KAPIA 1ST Accused

INES GASES 2nd Accused

OTNIEL PODEWILTZ 3rd Accused

SHARON LYNETTE BLAAUW 4th Accused

RALPH PATRICK BLAAUW 5th Accused

MATHIAS SHIWEDA 6th Accused

NICOLAAS CORNELIUS JOSEA 7th Accused

and

THE STATE

Neutral citation: Kapia v The State(CC 09-2008) [2015] NAHCMD140(15 June 2015)

Coram: LIEBENBERGJ

Heard:10 June 2015

Delivered: 15 June 2015

Flynote:Fundamental rights – Right to a fair trial – Rights of suspect – Admissibility of statement taken from accused without informing them of their constitutional rights at time when they were required to make statements –Accused not considered witnesses or suspects at the relevant time– Notwithstanding accused advised to contact a lawyer prior to making statements – Accused elected not to give evidence but claim to have regarded themselves witnesses at relevant time – No obligation to explain constitutional rights to a witness – Accused were not suspects treated like witnessesin order to obtain information under false pretence – Accused informed of the nature of the statements to be made – Statements were made freely and voluntarily.

Criminal procedure – Trial – The accused – Legal representation of – Accused persons’ right to be informed that sworn statements made by them were to be used in criminal proceedings against them – Legal position in Namibia – Although concept of a ‘fair trial' in Namibian law differs from that in South African law in that in the case of the former the right derives from the Bill of Rights, it cannot be said that a trial will be less fair if a person who knows that it is his right to be legally represented is not informed of that fact – Whether failure of justice results is a question of fact – Accused no 4 is an admitted legal practitioner and accused no 5 her husband and an educated person – Failing to heed advice to consult a lawyer to their own peril – In absence of evidence to the contrary, court satisfied they were aware of their rights at the relevant time – Statements ruled admissible.

Summary:The accused persons testified during an enquiry held in terms of s 417 of the Companies Act 61 of 1973 and were implicated in the court’s judgement. Subsequent thereto they were approached by the police and informed of the incriminating allegations emanating from the judgment and asked whether they had any knowledge thereof. They were at the time advised to consult a lawyer prior to making the statements. At the relevant time they were not regarded as either witnesses or suspects. They made the statements voluntarily and handed same over to the police. They were subsequently indicted and during the trial objected to the production of the statements in evidence on the basis that the accused were not warned when making the statements that it would be used against them in criminal proceedings. Though the accused elected not to give evidence, they considered themselves witnesses when making the statements. There is no duty to explain rights to a witness, only to a suspect or an accused. This notwithstanding they were advised to consult a lawyer before making any statement. If they did not heed the advice given to them it is only to their own peril. Accused no 4 is an admitted legal practitioner and married to accused no 4, an educated person. In the absence of evidence to the contrary, the court was satisfied that they were aware of their rights.

ORDER

The sworn statements of accused no’s 4 and 5 obtainedby Officer Zambwe are ruled admissible in evidence.

JUDGMENT

(Trial within a trial)

______

LIEBENBERG J:

[1] This ruling follows from an objection raised by Mr Kasper, who appears on behalf of accused no’s 4 and 5 (the accused), in respect of the admissibility of sworn statements made by the said accused to the investigating officer prior to them being indicted.

[2] It was contended that the inclusion of the statements as evidence would render the trial unfair in that the accused, at the time of making the statements, had not been charged and did not anticipate them becoming suspects in the matter, or knew that it would be used as evidence against them in a criminal trial. It was further contended that the accused were not informed or warned by the investigating officer, Samuel Zambwe (rank unknown), of the consequences of making a sworn statement i.e. that it could be used against them during criminal proceedings. In view of the constitutional issue raised the court ruled that the admissibility of the statements had to be decided in a trial-within-a-trial.

[3] Whereas the prosecution led the evidence of two witnesses who testified about the circumstances under which the sworn statements were obtained, no evidence was presented by or on behalf of the accused persons. It is common cause that the accused voluntarily made the statements and had same commissioned before handing it to the investigating officer. The contents of these statements do not appear to be in dispute.

[4] Officer Zambwe explained the purpose of approaching the accused as follows: Both the accused testified during an enquiry conducted in terms of section 417 of the Companies Act 61 of 1973 (now repealed) into the affairs and property of Avid Investment Corporation (Pty) Ltd. Heathcote AJ, who presided over the proceedings, made certain recommendationsin his judgment which gave rise to investigations to be conducted by the Serious Crime Unit of the Namibian Police. The docket was subsequently transferred to the Commercial Crime Unit for investigation and in view of the court’s findings, it was decided between Officer Zambwe and the Unit Commander, Chief Inspector Bampton (as he then was) to call the accused to their offices and explain to them what the court had found and decisions to be taken in that regard. They were specifically informed about allegations emanating from the enquiry which implicated their involvement in Avid and were told to go home and after consulting their lawyer, if they so wished, to submit statements explaining whether or not they had any knowledge of the allegations made. They indicated that they had no objection to the request and subsequent thereto prepared sworn statements and handed it over to Officer Zambwe. He noticed that the statements were commissioned by Mr Ipumbu, a practicing legal practitioner.

[5] During his testimony Officer Zambwe further said that he informed them at the time that their statements were required for purposes of the investigation and considered the accused to be neither suspects nor witnesses. He knew that accused no 4 was legally qualified and married to accused no 5 and because they had testified at the enquiry, assumed that they had to their disposal sufficient information to adhere to the request to make statements, thus nothing further was explained to them.

[6] Officer Zambwe under cross-examination said that he cannot deny that he had taken statements from the accused as witnesses for the State. This is not consistent with his earlier evidence that to him the accused were neither witnesses nor suspects. Had they indeed been considered as mere witnesses it certainly begs the question why were they advised to consult their lawyer first before making any statement? It seems clear that the need for this was because they were implicated in the court’s judgement and were afforded the opportunity to explain their alleged involvement which formed part of the investigation. Obviously, depending on the outcome of the investigation, they might beeither witnesses for the State or be indicted. It is in my view of no consequence for the determination of the admissibility or otherwise of the statements to decide whether the sworn statements deposed to by the accused can be labelled as witness statements or not, as the result would be the same.

[7] The State, in its quest to have the statements admitted as evidence relies on the provisions of section 219A of the CPA (Act 51 of 1977) which provides that:

‘(1) Evidence of any admission made extra-judicially by any person in relation to the commission of an offence shall, if such admission does not constitute a confession of that offence and is proved to have been voluntarily made by that person, be admissible in evidence against him at criminal proceedings relating to that offence: Provided …’(My emphasis)

[8] Mr Marondedze, appearing on behalf of the State, contends that the sworn statements deposed to by the accused were made freely and voluntarily and, therefore, it is admissible in evidence as the only requirement provided for in the section had been met. It is common cause that the accused had made these statements voluntarily and there is thus no issue to be decided in this regard. It is trite law that it is not necessary that the deponent should have realised that the admission made was against his/her interest, neither must it have been against his/her interest at the time the admission is made (R v Barlin 1926 AD 459 at 465; S v Grove-Mitchell 1975 (3) SA 417 (A) at 420).

[9] From a reading of the section it is evident that any extra-judicial admission by any person, provided it is not a confession of the offence admitted, is admissible if it was voluntarily made. Other than the provisions contained in the section, there are no other requirements before an admission becomes admissible, which means that there is no basis for the automatic exclusion of any admission contained in a statement generally labelled as a witness statement. It thus means that any person who makesadmissionsunfavourable to him/herself in a statement, and the statement is later used in criminal proceedings (other than on a charge of perjury) against such person being the accused, those admissions are admissible in evidence: Provided the circumstances under which the statement is obtained do not infringe the constitutional rights of the accused.In the present instance the accused contend that their statements were unfairly obtained as they were not duly informed of the consequences of the statements they were requested to make.

[10] The gravamen of the objection is that it would be unfair to first obtain witness statements from the accused and then use same against them without informing them of the consequences thereof.

[11] The only evidence regarding the circumstances under which the accused were requested to make statements is that of Officer Zambwe, evidence that was not challenged in any manner. What is evident from his testimony is that he at that stage was still busy with the investigation and although he might have foreseen the possibility of the accused being indicted by advising them to consult a lawyer, he could not have known that as a fact because a decision to that effect still had to be taken by the prosecuting authority, the Prosecutor-General. His evidence was that, to him, the accused were neither suspects nor witnesses at the time – all he needed from them was some explanation as to the incriminating allegations made against them pertaining to their involvement in Avid; evidence that was not countered. Could it against this background be said that the officers clearly failed in their duty by not informing the accused of the possibility of their statements being used as evidence in subsequent criminal proceedings?

[12] In support for the contention that the question must be answered in the affirmative, counsel extensively relied on the dictum enunciated in S v Sebejan and Others 1997 (1) SACR 626 (W) pertaining to a suspect having the same rights as an accused. These findings were equally endorsed in this Jurisdiction (S v Malumo and Others (2) 2007 (1) NR 198 (HC)). It was argued that the facts of that case are on all fours with the present matter. I do not agree.In that case the wife of the deceased was requested by the investigating officer to give a statement pertaining to events which preceded the death of her husband. At that stage she was not a suspect but soon thereafter became one the same day when she was incriminated by another witness. The officer who recorded her statement had not warned her of her right to legal representation at the time. He only placed the commissioner of oath’s stamp on the statement later that eveningafter obtaining the incriminating statement against her which created the impression that it was duly commissioned whilst it was not. When counsel for the other accused wanted to use this statement in cross-examination, an objection against its admissibility was raised. The court found that the accused was not an arrested person nor an accused at the time she made the statement and neither did she consider herself to be so. Because she was neither, the provisions of Section 25 of the Constitution (SA) protecting the rights of ‘detained, arrested and accused persons’ did not find application.

[13] The basis of the objection to the statement being used in cross-examination was that it should be ruled inadmissible since the accused was considered a suspect and was not warned of her constitutional right. After the court comprehensively discussed and considered questions pertaining to what or when is someone a suspect; the rights that accrue to a suspect; and whether the accused in that case was indeed a suspect at the relevant time, it came to the conclusion 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’ (at 632).

The rights of a suspect are: ‘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’ (at 632).

As to whether the accused was a suspect at the time of making the statement it was found that she was not and therefore the investigating officer was not required to warn her of any rights, including the right to silence or to a lawyer. The statement was accordingly ruled admissible for purposes of cross-examination (at 637).

[14] Returning to the present matter, it was argued on the accused persons’ behalf that they were witnesses when approached by the police to make statements and that is how they understood themselves to be. If that were the case, there was in view of what has been said in Sebejan, no duty on the investigating officer to warn them of their constitutional rights. This notwithstanding,Officer Zambwe advised them to consult a lawyer before making a statement. In view thereof, I am unable to come to the conclusion that the constitutional rights of the accused had been infringed in that respect.

[15] The objection was further developed during argument to say that in view of what has been said in Sebejan, the accused were deceived in that they were suspects who were treated as witnesses and information obtained from them under false pretence in the hope and belief that the information so obtained could be used to further the investigation against them. The passage quoted and relied on must be read in context with the facts of that case, which are clearly distinguishable from the present matter.

[16] In this case the accused were pertinently informed of the incriminating allegations made against them and were advised to consult a lawyer before making their statements. This was not an instance where they were deceived and ‘in jeopardy of committing some careless or unwise act or uttering some incautious and potentially incriminating words which would subsequently be used against [them] in a trial’ (Sebejan at 633). Both knew what was required of them i.e. to explain or dispel allegations regarding any involvement in the financial downfall of Avid emanating from the court’s judgement. The argument is accordingly without merit.

[17] It was further argued that the fact that accused no 4 was an admitted legal practitioner and accused no 5 being married to her, does not change their positions; neither did accused no 4 represent her husband at the relevant time. The question that need to be answered is whether the accused persons took an informed decision when they decided in favour of making statements?

[18] Whereas neither of the accused elected to give evidence and explain whether or not they at the relevant time were aware of their constitutional rights, the court is obliged to look at the proved facts and by means of inferential reasoning, decide whether or not they possessed such knowledge.

[19] Pertaining to the right of an accused to be informed of his/her right to legal representation, this court in S v Bruwer 1993 NR 219 (HC) said the following at 223C-F:

‘As far as the first point is concerned I agree with Mr Smuts that the legal basis of the concept of a `fair trial' in Namibian law differs from that of the law in South Africa. I am also mindful of the fact that reference in our Constitution to a fair trial forms part of the Bill of Rights and must therefore be given a wide and liberal interpretation. However, I fail to see how it can be said, even against this background, that a trial will be less fair if a person who knows that it is his right to be legally represented is not informed of that fact. Whether the fact that an accused was not informed of his right to be legally represented, resulted in a failure of justice is, as in most other instances where a failure of justice is alleged, a question of fact.On this point Mr Smuts was constrained to concede that in the case of an accused being an attorney, failure to so inform him would not vitiate the proceedings because he is supposed to know what his rights are.Once this concession is made there can in principle be no difference between an accused being an attorney or any other accused who knows that he is entitled to be legally represented.’(My emphasis)