Windhoek High Court Judge Thomas Masuku dismissed an application by Windhoek-based lawyers, Dirk Conradie, and Sara Damases to be acquitted from the corruption charges in terms of Section 174 application.
Judge Masuku earlier this week found that the State produced enough prima facie evidence to put the accused on their defence on charges of fraud. Conradie and Damases face three counts of contravening the Anti-Corruption Act for allegedly attempting to bribe Mark Bongers and his wife and business partner Kim Fields with the massive advertising contract of MTC where Conradie was the board chairman. He allegedly promised them the MTC advertising contract if they took Damases on board as a black economic empowerment (BEE) partner.
The judge stated that in his mind, the State has proven that MTC is a public body, which means that Conradie is a public officer subjected to the rules and regulations governing all public officials. He further said the evidence adduced so far, suggest on a prima facie basis that the accused conspired to commit an offence under the Anti-Corruption Act. According to the judge, the doctrine of common purpose applies in cases where liability is attributed to an individual charged with crime because of their participation in a shared unlawful goal.
“This is so even if that person does not directly commit the crime in question,” Judge Masuku said and continued: “Each person charged is thus liable for the actions of others, as long as they share the same intent or objective, i.e. to commit the crime together. In this regard, he said, there are three important elements that have to be proved. First, there must be intent to commit a crime. In this regard, the accused person must have the intention to act as part of a group of individuals in carrying out an unlawful goal.”
Secondly, the judge stated, that individual must associate with the conduct that constitutes the crime, either by participating, aiding or endorsing the group’s actions and lastly, there must be presence of that individual or some contribution, with a clear intention to support the criminal activity or by directly assisting to trigger liability.
He said that he is of the considered view that both accused fully participated, on a prima facie basis, and the doctrine of common purpose appears to have been proved by the State on a prima facie basis. He said that he is of the considered view that the accused persons do have a case to answer and must be put on their defence. Judge Masuku said that justice demands that Conradie and Damases be afforded the opportunity, considering the nature and strength of the evidence adduced, to mount their own defence to the allegations made against them.
The matter was postponed to 5 December for the allocation of dates for the defence. Conradie is represented by Senior Counsel Vas Soni instructed by Slysken Makando and Damases by Vetu Uanivi. The State is represented by Ed Marondedze.