Windhoek-Following a successful appeal by the prosecutor-general against the Section 174 discharge of former RDP parliamentarian, Magnus Nangombe, former Electoral Commission of Namibia (ECN) boss Philemon Kanime, and the former systems administrator at the ECN, Nicodemus Mingelius, by Regional Court Magistrate Sarel Jacobs in January 2014, two judges of the Windhoek High Court yesterday ordered that they be put on their defence.
Alternatively, if the trial magistrate is unavailable, the trial must start afresh.
High Court Judge Alfred Siboleka, who wrote the judgment in agreement with Judge Christi Liebenberg, yesterday set aside the judgment of Magistrate Jacobs that acquitted Nangombe and his co-accused and ordered that they must be subpoenaed to appear before the Regional Court in Katutura to answer to the charges of forgery and uttering a forged document (Nangombe and Mingelius) and fraud, of all three stand accused.
According to Judge Siboleka, the trial court should have asked the crucial question: If the proceedings were to be halted there and then, could a reasonable court acting carefully have convicted the three accused on the evidence placed before it when it was confronted with an application for discharge in terms of section 174 of the Criminal Procedure Act?
This reefers to an instance when the prosecution closes its case when an accused may ask for a discharge if the evidence placed before the court is not enough to sustain a conviction.
“It is crystal clear from the evidence that the trial court could have convicted all three accused. The reason being that in the absence of the accused’s side of the story, the undisputed circumstantial evidence tendered by the prosecution would have become proof of their guilt beyond reasonable doubt”, Judge Siboleka said.
He continued that a prima facie case upon which a reasonable court acting carefully may have convicted the three accused on this matter had been established.
The judge said a trial court is not entitled to decide whether the requirements for convicting the accused on circumstantial evidence at the close of the prosecution’s case have been satisfied or not, because that exercise relates to the credibility of witnesses, which should only take place at the end of the trial when both parties have placed their respective sides of the story before court.
The judge said in his considered view the mere existence of circumstantial evidence pointing to the alleged wrongdoing done by the accused automatically disentitles him to a discharge the accused at the close of the prosecution’s case.
This, he said, is a prima facie case, which requires the trial court to place the accused on their defense in order for them to furnish answers to the allegations.
Even if the circumstantial allegations were disputed during cross-examination, they would not be regarded as completely misplaced, as the accused is required to repeat what he has placed in dispute in his evidence under oath, so that the same can be tested by way of cross-examination, Judge Siboleka stated.
The State alleges Kanime and Mingelius had during the period between February 6 to 19, 2008 fraudulently gotten Nangombe registered as a voter in the local authority election of Omuthiya. They pleaded not guilty to all charges at the start of their trial.
State Advocate Ed Marondedze represented the prosecution, while Windhoek-based defence lawyer Hennie Barnard and Advocate Albert Strydom defended the accused.