Windhoek
After Deputy Judge President Hosea Angula last week only read the order of Acting Judge Thomas Masuku’s ruling on the jurisdiction of the Windhoek High Court to adjudicate on one of the charges prominent Windhoek-based lawyer Dirk Conradie, 55, is facing, New Era now publishes the reasons for the ruling.
According to Judge Masuku, where an accused person raises the issue of the court’s jurisdiction to try him or her, all that he or she has to do is raise the issue and it is for the State to prove that the court has the jurisdiction to adjudicate on the charge beyond a reasonable doubt.
The judge said that once the issue of the court’s jurisdiction has been properly raised by an accused person, such issue must first be heard and determined by the court in a dispositive manner. A further applicable principle is that should it transpire that there is an irresoluble dispute regarding the special plea, such dispute must be resolved by the hearing of vocal evidence, the judge said.
“What the State may, however, not do, is send the accused, and by extension, the court on a wild goose chase as it were,” the judge stated. This was achieved, Judge Masuku said, by the State not accepting the facts suggested by the defence in their application, intimating strongly and thereafter pointing inexorably in the direction that there were serious disputes of fact, which could not be resolved and which would accordingly require the adduction of oral evidence.
According to the judge, to make matters worse, the State did nothing to indicate to either the accused or the court what evidence would be led and by which witnesses, to prove that the court has jurisdiction beyond reasonable doubt as the day of reckoning approached, which exercise the judge said would have enabled the defence to prepare its case.
He said that what rather happened at the date of the proposed hearing was that the State “for the first time”, and without prior notice to either side or the court, accepted the facts as stated by the defence’s application.
“This appears to me to have been a capitulation that robbed the defence of an opportunity to properly prepare for the determination of the matter. This knee-jerk reaction, if I may call it that, placed the court in a cloud of uncertainty as to what would happen on the appointed day,” the judge stressed. He further said such actions and practices of the State must be condemned in the strongest possible terms.
According to the judge, it must be remembered that a criminal trial is not a game of chess, where the proposed line and manner of assault must be kept in a party’s bossom and particularly in the deepest recesses thereof.
“Such tactics of secrecy, if they serve the parochial interest of a party, must not, however, be placed ahead of the doing of substantive justice between the parties who are represented by legal practitioners who are officers of the court,” the judge emphasised.
He further said that in order to identify the facts on which the determination on the issue of the court’s jurisdiction can be made, the State may lead oral evidence to that effect, especially if there are serious disputes of fact, or the parties may agree on the common cause facts on which the ruling can be predicated. According to the judge, although Conradie suggested the “common facts by application in an unusual manner and at a late time in the context of the hearing, the intention was laudable and geared to save time and costs, and the State should have concentrated on the content of the application”.
Judge Masuku was of the opinion that had the State considered the application in a correct light and separated procedural issues from the issues of justice at play, the court may have saved time and expended a reasonable time to the case and the balance of the days allocated to the matter could have been expended on other deserving cases.
He said that legal practitioners should deal with cases in a manner that advances the course of justice rather that what serves the interests of their particular clients.
According to the judge the general rule is that courts in both statutory and common law crimes have jurisdiction to try offences that occur within their territorial precincts, and that in statutory offences the courts may not extend the territorial jurisdiction if Parliament has not in clear language granted the courts extra-territorial jurisdiction. He said that if the courts arrogate themselves jurisdiction not granted by Parliament, they may fall foul of the doctrine of separation of powers.
While the Anti-corruption Act clearly makes provision for offences committed outside the borders of Namibia to be the same as if committed within the borders of Namibia, Conradie was not indicted under that Act
In that scenario, the judge said, it is clear that the legislature, in respect of this legislation, went out of its way to clothe and invest Namibian courts with special jurisdiction to try accused persons who are Namibians or ordinarily resident or domiciled in Namibia, and who are alleged to have committed corruption-related offences outside the jurisdictional precincts of the republic.
“This in my view was the result of the legislature being acutely aware that the ordinary provisions and application of the law do not allow our courts to exercise jurisdiction over alleged criminal acts that occur abroad,” the judge stated. He said the Act (Companies Act) under which Conradie was charged does not have a provision that allows a Namibian court jurisdiction over an alleged offence that occurred outside its jurisdiction.
The trial will commence on September 23 for the setting of trial dates on the other charges Conradie and his long-time friend Sara Damases, 50, face relating to an alleged bribe offered to secure Damases a stake in an advertising agency.
They are jointly indicted on three charges under the Anti-Corruption Act, namely corruptly soliciting gratification for using influence in procuring a contract, corruptly using an office or position to obtain gratification, and attempting or conspiring to contravene sections of the Anti-Corruption Act.