WINDHOEK – Two Congolese nationals convicted of dealing in drugs in the Windhoek Magistrate’s Court last year have successfully appealed against their conviction in the Windhoek High Court.
Judges of appeal, Shafimana Uitele and Harald Geier, upheld the appeal of Arsen Mayawoula and Elvis Lubaki on Monday and set aside their convictions and seven-year sentence by Magistrate Hileni Kavara on May 20, 2014.
Defence counsel Orben Sibeya, who represented Mayawoula and Lubaki in the trial in the magistrate’s court, lodged the appeal on their behalf.
In his heads of argument, Sibeya said the trial court found that the State failed to prove Mayawoula was aware of and indeed had the intention to possess the drugs that were found in the tyre of the vehicle he was driving, but nevertheless went ahead and concluded that he dealt in drugs.
Drugs consisting of 105 bullets of cocaine wrapped in sellotape were discovered in a spare wheel of the vehicle Mayawoula was driving in January 2010.
According to evidence led during the trial, Mayawoula was stopped at the Windhoek/Okahandja roadblock on his way back to Windhoek from Rundu.
He was told to follow police to his flat in Khomasdal and his vehicle and flat were searched but nothing was found.
However, it emerged, the spare wheel was taken by the police to Eros Airport for screening and foreign objects were discovered inside which turned out to be cocaine.
Castro Ngangu, who was accused with them later admitted the drugs were his and that he was promised N$20 000 by a certain Da Silva Dabo.
He pleaded guilty to the charges.
In his appeal, Sibeya argued that the trial court knew Ngangu wanted to plead guilty to exonerate the appellants, who knew nothing about the drugs.
He said the trial court’s reliance on an English principle in law that a person who is in possession of a motor vehicle or other means of conveyance leads to a strong inference that the person is in possession of its contents, was a misdirection.
He said the said principle in not in harmony with Namibian laws, which state that possession or control requires physical possession.
In this instance, this was not proved as the trial court found, Sibeya argued.
He further said even the presumptions relied on do not assist the trial court in its finding the appellants had no knowledge of the presence of the drugs in the spare wheel.
“Accused 3, who knew about the presence of the drugs in the spare wheel, exonerated the appellants in his plea explanation and in his evidence during the trial,” Sibeya stressed.
He said no evidence to the contrary was provided by the State.
He further argued the inference drawn by the trial court that the appellants together with Ngangu dealt in drugs is not consistent with the proven facts.
He submitted the defence evidence was adequately analysed to determine if it was reasonably possibly true and there its dismissal was a misdirection by the trial court.
Judges Uitele and Geier agreed with Sibeya’s sentiments and upheld the appeal.