WINDHOEK – Four of the six men tried in connection with Namibia’s biggest robbery – “the Brakwater heist” – were discharged in the Windhoek High Court on Friday.
This came to light after the State closed its case in November last year and the lawyers for all the accused applied for a discharge in terms of Section 174 of the Criminal Procedure Act. Deputy Prosecutor General Anita Meyer conceded at the end of the State’s case that there was insufficient evidence before the court to convict Benedictus Kasimbingwe, Elitana Nghimwena, Mateus Hauwanga and Jason Awene.
She however said that enough evidence was produced in court to put Jan Julius and George Jambeinge on their defence. Julius was the driver of the van that was robbed.
The State alleged that they were involved in the armed robbery in which just over N$5,7 million in cash was allegedly stolen from a cash-in-transit vehicle in the Brakwater area north of Windhoek in the early hours of December 29 2004.
“Apart from the evidence incriminating accused 1 and 2 as pointed out by counsel for the State, there is no other evidence linking accused persons 3, 4, 5 and 6 to the crime,” Judge Naomi Shivute said in her judgment.
Judge Shivute said that she was faced by the question whether the evidence adduced by the State is of such poor quality that no reasonable court may possibly convict.
She said that the State led direct evidence that incriminated Julius who allegedly picked up a hitchhiker who turned into a robber. She said that the hitchhiker was allegedly working in cahoots with accused 1 who allegedly disarmed his co-driver and telling him not to shoot the hitchhiker because he allegedly knew him. She said that although Julius denied that he co-operated with the hitchhiker “the value to be accorded to what he said and its reliability may only be determined if it is tested through cross-examination”.
According to Judge Shivute the State led evidence that money was found in the vehicle of Jambeinge.
She said that Jambeinge was in possession of the keys to the vehicle and the key to the trunk where a large amount of money was found. She said that the accused was in control of the vehicle where the money was found and that the money was allegedly linked to the money that was robbed because of the logo that was found on the strap used to tie the money.
She said although it was put on behalf of Jambeinge that the money was given to him by Sunnyboy Emvula, that allegation was disputed by the State witnesses and the value to be accorded to this assertion and reliability may only be determined if tested through cross-examination.
“For the abovementioned reasons, I am satisfied that the State has established a prima facie case against accused 1 and 2. I will therefore place them on their defence” the judge said. With regard to Kasimbingwe, Judge Shivute said there is not sufficient evidence to put him on his defence as according to counsel for the State due to the death of a certain Sunnyboy Emvula and the refusal of a witness residing in South Africa to give testimony.
This testimonies were supposed to link Kasimbingwe to the crime, she said. “Concerning accused 4 and 5 their link to this case depended on the evidence against accused 6 if he was proved to be the hitchhiker. It was alleged that they assisted accused 6 in the furtherance of this crime,” Judge Shivute stated. She said that there is not sufficient evidence that Awene was indeed the hitchhiker and therefore counsel for the State correctly conceded that no evidence against accused persons 3, 4, 5 and 6 was established.
She said that the evidence adduced in respect of these accused is of such a poor quality that no reasonable court acting carefully may convict. The matter was postponed to November 11 to 15 for the defence.
By Roland Routh