CASE NO.

CC 20/2013

DATE OF HEARING: 04/08/2023

BEFORE JUSTICE MASUKU J

IN THE HIGH COURT OF NAMIBIA MAIN DIVISON

HELD AT WINDHOEK

In the matter between

THE STATE

And

DIRK HENDRIK CONRADIE FIRST ACCUSED

And

SARA NGENOHANI DAMASES SECOND ACCUSED

STATE’S SUBMISSIONS IN SUPPORT OF THE ADMISSION OF PROVISIONAL

EXHIBITS “A” AND “1” AS EXHIBITS

____________________________________________________________________

INTRODUCTION

1. The untimely demise of the State witness, Dr. Paul Stefanus Ludik whose

testimony would have been with regards Exhibit “1” has resulted in the

accused resisting the State’s application to have the two above mentioned

exhibits which were initially admitted provisionally, to be admitted as exhibits.

No cogent reasons have been provided as yet besides it having been

mentioned in Court that such an application will be opposed. These

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submissions therefore, have been prepared with the aim of being used in

support of the application which the State intents to bring before this

Honourable Court and they have been drafted without the insight of the

nature of the grounds of opposition.

It is the State’s humble submission that the natural forced absence of Dr.

Ludik should not stand as a bar to the admission of the exhibits into evidence

given the fact that the State has place evidence on record on how the

evidence was gathered and the accused persons have not yet placed

evidence on record to show which one of their constitutional rights was

violated and in what way. This Honourable is being asked to disregard

authentic evidence on the mere say so of the accused and this should not be

allowed as will be more fully argued below.

IN DETAIL

HOW DID THE EXHIBITS END UP BEFORE THE COURT PROVISIONALLY?

2. At the beginning of the trial, the State indicated to the defence that it intended

to utilise the two exhibits when leading its first two witnesses. This prompted

Counsel for accused 1 to make submissions to the Court starting from page

310 of the record of proceedings. Reference was made to Articles 12; 5;

13; 8 and 11 of the Namibian Constitution. The thrust of the submissions was

to the effect that the two exhibits had been secured in a manner that violated

the above cited constitutional provisions in one way or another. The defence

did not move for this issue to be resolved first and not for the first time did
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they shy away from this. It should be noted that they instituted a pre-trial

interlocutory application wherein inter alia they filed a special plea

challenging the jurisdiction of the Court on other counts and also the

constitutionality of the manner in which the same Exhibits were obtained. The

later challenge was abandoned and they persisted with the jurisdictional

challenge. However, this was not before the State had filed its heads of

argument on the issue.

3. However, the defence made a conscious decision as follows and starting

from page 313 line 29 up to page 315 line 24 of the record of

proceedings. The submissions will be quoted verbatim hereinunder;

“But My Lord, purely for the purposes of getting the trial

on the go, seeing that my Learned Friend has had to get

Witnesses who are not readily available, we have decided

that we will adopt the following approach: My Learned

Friend would be entitled to have the evidence relating to

what happened at the meeting admitted provisionally and

the Witness will then say what happened at the meeting to

the extent that it is necessary and that we would then,

having provisionally accepted what was said at the

meeting, reserving our right to challenge its acceptance

by Your Lordship as evidence, not the correctness of the

evidence, that we will then say that that evidence should

be excluded. In order to promote the facilitation of the

trial we have decided to approach this approach.

Ordinarily what would have happened, My Lord, my Learned

Friend would have had to say well, the recording took

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place here, it was given to Mr X, Mr X did this, Mr X did

that, here is the recording and all that chain of events

would have had to be here, we would be here for another

day or two dealing with that chain and then we are not

going to get to the Witness who testified to it. So, out

of consideration for the administration of justice we have

adopted this stance, but I must emphasise, My Lord, purely

on the basis that we have the right to challenge its final

admissibility and whether Your Lordship should take it.

COURT: Yes.

MR SONI: My Lord, in order to move in that direction, I

have suggested to my Learned Friend that what we would do

is, there is the recording, the audio recording and there

is a transcript of same. Unfortunately, and this is not a

criticism, it is just an observation, there are three

versions type by different people. We just want to know

which version the State would rely on in the trial and

then measure that version with the actual audio recording

so we all are working from exactly the same words to

determine whether the Accused are guilty or not. So, we

would then spend part of today at least measuring the two.

My Learned Friend will obviously make available to Your

Lordship a transcript which we have been given access to

and which he would use and which would become part of the

record. If my Learned Friend is going to bring the

Witness forward first, as I understand, just to say that

he recorded it and then we will listen to the recording.

My Lord, just one further point that I suggested is that

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rather than listening to the entire recording and then

saying, “well, we disagree with this and this and this”,

we would at appropriate intervals stop the recording and

say, “are we all agreed that it corresponds with what has

been transcribed?” And if there is any changes to be made

it would be made and then that would be binding on all

parties.”

Counsel for accused 2 acquiesced the submissions that were made on

behalf of accused 1. Thereafter this Honourable Court made a ruling

admitting the evidence provisionally subject to their right to challenge its

admissibility at an appropriate stage.

4. Before the first State witness testified, Exhibit “1” was played for the

purpose of comparing it to Exhibit “A”. A few cosmetic corrections which

had no bearing to the context and material content of the meeting were

made. None of the accused and through their counsel indicated that the

voices in the recording were not theirs nor did they deny uttering what was

attributed to them. During cross-examination of the two witnesses no such

dispute was put to them. Again, there was no indication from the accused

that any part of the discussion during the meeting had not been captured or

had been left out. In fact, the witnesses were taken through the whole

transcript. See for example from page 509 of the record onwards wherein

Mark Bongers was taken through every line of the Exhibit “A”. The thrust of

the cross-examination was to try and force the two witnesses to admit that

they knew what the meeting was about beforehand and therefore, they were
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complicit in the commission of the offences which the accused are facing

today.

5. At no stage was it put to the witnesses that by recording the conversation

they were violating the constitutional rights of the accused persons. Even up

to today the accused have not laid the basis or put before this Honourable

Court any evidence to show which of their constitutional rights were violated

and in what manner. This maybe will be done if they choose to testify in

their defence, one can only hope. As of now, all what has been placed on

record are certain articles of the constitution which they allege were

violated. This is not enough. See Shanghala v S1 where UEITELE J stated

as follows;

“[63] In the matter of the Disciplinary Committee for Legal Practitioners v

Slysken Makando and The Law Society, Slysken Makando v Disciplinary

Committee for Legal Practitioners and Others 2 this Court per Justice Parker

had the following to say:

‘[9] In considering the first respondent’s constitutional challenge

based on art 12(1) and art 18, I keep in my mental spectacle the

following trite principles of our law . . . (1) constitutional challenge in

general and (2) constitutional challenge of a provision of a statute in

particular. Under item (1), it has been said that the person complaining
1
(CC 06/2021) [2022] NAHCMD 164 (01 April 2022) paragraphs 63-64 of the cyclostyled
judgement pages 23-24

2
Disciplinary Committee for Legal Practitioners v Slysken Makando and The Law Society, Slysken
Makando v Disciplinary Committee for Legal Practitioners and Others Case No. A216/2008
(Judgment on 8 October 2011).
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that a human right guaranteed to him or her by Chapter 3 of the

Constitution must prove such breach (Alexander v Minister of Justice

and Others 2010 (1) NR 328 (SC)) (as Mr Khupe submitted). And

before it can be held that an infringement has, indeed, taken place, it

is necessary for the applicant to define the exact boundaries and

content of the particular human right, and prove that the human right

claimed to have been infringed falls within that definition (S v Van der

Berg 1995 NR 23). Under item (2), the enquiry must be directed only

at the words used in formulating the legislative provision that the

applicant seeks to impugn and the correct interpretation thereof to see

whether the legislative provision – in the instant case, art 12 (1) and

art 18 of the Namibia Constitution – has in truth been violated in

relation to the applicant (Jacob Alexander v Minister of Justice and

Others Case No. A 210/2007 (HC)’.

[64] It follows that, the applicants, in their affidavits and in their oral

evidence, had to furnish facts in the form of evidence pertaining to the nature

of the violation of their constitutional rights. As regards the evidence which the

applicants had to put before the court in their affidavits and oral evidence, I

echo the words of Kumleben, then AJA, in the matter of Radebe and Others v

Eastern Transvaal Development Board, that the allegations (i.e. that the

constitutional rights are being infringed) in the founding affidavits and the oral

evidence are conclusions of law, they are at best for the applicants

inferences, "secondary facts", with the primary facts on which they depend on

having been omitted.

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[65] In the matter of Willcox and Others v Commissioner for Inland

Revenue3 Schreiner JA explained the concept of ‘primary’ and ‘secondary’

facts as follows:

‘Facts are conveniently called primary when they are used as the basis for

inference as to the existence or non-existence of further facts, which may be

called, in relation to primary facts, inferred or secondary facts.’

[66] In the instant case, the applicants had to place before the Court

primary facts which must be used as a basis to infer the existence of further

facts namely that their constitutional rights are being violated or infringed.

They did not do that. What they did is that they pleaded a legal result and

parroted Articles 7, 8, and 12, of the Constitution. I am of the further view that

the appellants’ reliance on the Gustavo matter is misplaced. I say so,

because in that matter the learned Justice Oosthuizen simply enumerates the

rights guaranteed under the Constitution, but does not tell the reader of that

judgement how the rights were violated. It must be remembered that in this

matter all the applicants were arrested on the strength of warrants of arrest

issued by a judicial officer, and the legality of the warrants of arrest was

tested in this Court; meaning that their arrests are neither unlawful nor

arbitrary but in accordance with the law.”

6. The two exhibits are in fact the evidence of the two witnesses. As the

witness Mark Bongers stated at page 489 of the record, the two exhibits

were a back-up if it was ever in future as to why they attended the meeting

and what transpired thereat. They had absolutely no idea that what

3
Willcox and others v Commissioner for Inland Revenue 1960 (4) SA 599 (A) at 602.
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eventually unfolded at the meeting was going to happen (page 482 of the

record). They thought it was going to be a clarification on something.

7. This Honourable Court has heard the evidence of the two witnesses. The

Court has had the opportunity of listening to the audio cassette and

compare it to the transcript. The Court has listened to the cross-examination

of the witnesses. What is now common cause is the fact that the audio

recording and the transcript thereof are a true reflection of what transpired

on the 12th June 2012. Several instructions from the accused have been put

to the witnesses through cross-examination. What is now left is for the

accused to place their evidence on record as to why the two exhibits should

be excluded from being part of the evidence which the Court would

ultimately consider in reaching its final verdict. It is submitted that this task

cannot be exercised judiciously and in the interests of justice without the

two exhibits. The witnesses were extensively cross-examined over the two

exhibits and their credibility was questioned based on the two exhibits. As

has already been alluded to above, none of the two accused persons is

disputing anything contained in the exhibits. The unavailability of Dr. Ludik

will not detract anything from the authenticity of the two exhibits.

8. The two witnesses (Mark Emile Bongers and Kim Elizabeth Field) testified

that the second accused came to their offices and told them that she had

been sent by the first accused person to invite them to a meeting to discuss

funny things going on with the MTC tender their company had participated

in. There was no indication that the meeting would turn out to be what
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transpired. This much is confirmed by the two exhibits if one listens to the

audio recording or read the first pages of the transcript. They (Mark Emile

Bongers and Kim Elizabeth Field) went to the meeting because in the past

they had participated in an MTC tender which ended in controversy. They

decided to record the conversation at the meeting in case MTC was at it

again. When they realised the gravity of the first accused’s demands they

approached their legal practitioner for advice. He too in turn briefed Senior

Counsel who ultimately advised them that the accused persons had

contravened certain provisions of the Anti-Corruption Act. He therefore

advised them to lay charges with the Anti-Corruption Commission.

9. As it more fully appears from the two exhibits the two accused never told

the Mark Emile Bongers and Kim Elizabeth Field that this was a confidential

meeting. The accused persons did not impose any restriction upon Mark

Emile Bongers and Kim Elizabeth Field in dealing with the information and

so they (accused persons) had no legitimate expectation that the

information would not be disclosed to others and in particular the law

enforcement agents.

10. The two exhibits are an epithet of undisputed events of the 12 th June 2012.

The issues of the right to a fair trial as enshrined in article 12 and the

alleged breach of the rights enshrined under articles 8 and 13 of the

Namibian Constitution are not simple issues and are certainly intertwined

with the evidence relevant to the charges the accused is facing. These

issues therefore should be left for the Court to consider together with the
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evidence already tendered by the State and that will be tendered by the

accused in the event of them choosing to testify at the end of the day.

11. As has already been allude to above, no evidence has been placed by the

accused before this Honourable Court as to why the two exhibits should

not be admitted into evidence. Although the witnesses were cross-

examined at length, the thrust of cross-examination was not bent on

showing that the evidence was illegally obtained or that it was obtained in a

manner that violates the accused’s constitutional rights. It is the duty of the

trial court to try the charge and to ensure a fair trial; if it did not, the

conviction might be set aside. A court is not obliged to entertain a

constitutional claim in a vacuum; thus, a declaratory relief is not simply

there for the asking. This Honourable Court is prayed upon to admit the

exhibits into evidence.

12. It has been insinuated through cross-examination the act of recording by

Mark Emile Bongers was a trap, a suggestion which was vehemently

denied by the witness. And in fact, and with due respect, this allegation is

far-fetched as it is not supported by the evidence before the Court which

has been tested through cross-examination. Mark Emile Bongers and Kim

Elizabeth Field were invited to a meeting. In their minds they thought that

MTC was repeating what it had done to them in the past. They had no

notice that the accused were going to solicit and/or demand a gratification

from them in the form of awarding the second accused person a stake in

DV 8 Saatchi and Saatchi (Pvt) Limited in return of the first accused using
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his influence as the Chairman of the Board of Directors of MTC to prevail

over the other directors of MTC to ensure that DV 8 Saatchi and Saatchi

(Pvt) Limited shall be awarded the advertising tender at the directors

meeting that was pencilled for the 19 th June 2012 in Lisbon, Portugal. They

did not know that the first accused was calling them to discuss the

commission of several crimes. An entrapment is directed at procuring the

attempted commission by a suspect of a future offence. See the case of S

v NANGOMBE4 where DUMBUTSHENA AJA, as he was then, stated as

follows;

“A trap is defined in Gardiner and Lansdown South African Criminal Law

and Procedure 6th ed vol 1 at 659-60 as summarised and accepted in S v

Malinga and Others 1963 (1) SA 692 (A) at 693F-G and S v Tsochlas 1974

(1) SA 565 (A) at 574B as follows:

'A trap is a person who, with a view to securing the conviction of

another, proposes certain criminal conduct to him, and himself

ostensibly takes part therein. In other words, he creates the

occasion for someone else to commit the offence.'

See S v Ohlenschlager 1992 (1) SACR 695 (T) at 703B.

13. In the present case no offence was sought to be procured. Mark Emile

Bongers and Kim Elizabeth Field attended a meeting at the instigation of

the first accused who then made proposals to them. It was common cause

that their conversation did not include a conscious and deliberate

solicitation by them of certain intimations, admissions or evidence from the

4
1994 NR 276 (SC) at page 281
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accused. It is against that background that it cannot be contended that their

recording of the meeting constituted a trick. The present case is not a case

of the police setting out to induce innocent victims to commit a crime.

Indeed, it has nothing to do with the kind of police traps which are the

subject of most of the reported decisions in which the fairness of the trap is

considered. It is a case in which an innocent victim. The directors of DV 8

Saatchi and Saatchi (Pvt) Limited’s (Mark Emile Bongers and Kim

Elizabeth Field), sought to protect their business interests by trying to

finding out whether there had been manipulations of the tender procedure

at MTC as had happened in the past. See S v DUBE 5

14. What happened on the 12th June 2012 when the witnesses recorded the

conversation between them and the accused persons and also the

recording of the telephone conversation between the second accused and

Kim Elizabeth Field can best be termed as participant monitoring. See S v

KIDSON6. With due respect information voluntarily imparted in a two-party

conversation covering the criminal conduct of the communicator is not for

the purposes of the right to a fair trial as enshrined in article 12 and the

right to dignity enshrined under article 8 and also the right to privacy

enshrined under article 13 of the Namibian Constitution, 'confidential

information' in relation to the other party to the conversation.

15. In any event the discussion in the present case was not about the accused

personal issues or his personal business. It was about a public company

partly owned by the Government of Namibia. The first accused was

5
2000 (1) SACR 53 (N).
6
1999 (1) SACR 338 (W).
 14

appointed to the Board of Directors to serve the interests of Namibians. His

conduct was prejudicial to all the Namibians and therefore he cannot seek

refuge in the Constitution of the Republic of Namibia. See the case of

ATTORNEY-GENERAL OF NAMIBIA v MINISTER OF JUSTICE AND OTHERS 7

where SHIVUTE CJ said the following;

“It will be recalled that art 12(1) (d) reads in part that: 'All persons charged with

an offence shall be presumed innocent until proven guilty according to

law. . . .' In Alexander v Minister of Justice and Others 2010 (1) NR 328

(SC), this court had occasion to deal with the meaning of the not too dissimilar

phrase 'according to procedures established by law' used in art 7 of the

Constitution which provides: 'No persons shall be deprived of personal liberty

except according to procedures established by law.' It concluded in para 119

after a lengthy examination of similar phrases used in the same context in

many other constitutions that the phrase indicates that the article in question is

not absolute as it authorises the limitation of the right to liberty embodied

therein. As previously stated, the court went on to caution that where such

limitation is permissible, it should be limited to what is necessary to achieve

the object for which the limitation was enacted, because art 22 prohibits

limitations that negate the essential content of the right in question. An almost

identical phrase 'in accordance with law' is employed in art 13(1) which deals

with limitations on the right to privacy. The sub article reads:

'No persons shall be subjected to interference with the privacy of their homes,

correspondence or communications save as in accordance with law and as is

necessary in a democratic society in the interests of national security, public

safety or the economic well-being of the country, for the protection of health

7
2013 (3) NR 806 (SC) at page 827
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or morals, for the prevention of disorder or crime or for the protection of the

rights or freedoms of others.' [Emphasis is mine.]

It is clear from a reading of the sub article that the phrase 'in accordance with

law' contemplates the imposition of a limitation on the guarantee to persons of

the privacy of their homes, correspondence or communications and that the

words which follow immediately on it are intended to define the permissible

extent of the contemplated limitation — in much the same manner as the art

21(2) limitations to the fundamental freedoms enumerated in art 21(1) are

authorised.”

It is humbly submitted that the recordings which the first accused wishes

this Honourable Court to be excluded from evidence were obtained in a

manner that did not violate his constitutional rights.

16. In any event entrapment is not a defence in Namibia. See the case of S v

NANGOMBE8. See also the case of KRAMER and OTHERS9 where O’LINN

J, as he was then said as follows;

“It is trite law that the trap system is regarded as a necessary evil in our law -

i.e. that although it is tainted by immorality, it is justified particularly to bring a

known criminal or offender to justice. Our Courts have traditionally held the

view that the trapping system is legal, particularly because it is also legalised

by statutory law in that, for example, moneys paid to traps can be forfeited to

the State, and in some cases must be forfeited to the State in terms of express
8
1994 NR 276 (SC)
9
1990 NR 49 at page 55
 16

statutory provisions to this effect (see s 108(2) of the Precious Stones Act 73

of 1964, and s 6 of Proc AG 7 of 1990, which added a new s 34ter to s 34bis

of Proc 17 of 1939). Compare S v Tsochlas 1974 (1) SA 565 (A) at 573 G-574

A.”.

In the circumstances it is the State’s humble submission that the exhibits in

question is not tainted evidence and further that this Honourable The State

therefore prays for the exhibits to be formally admitted into evidence.

DATED AT WINDHOEK ON THIS 11TH DAY OF APRIL 2023

_____________________________
E. E. MARONDEDZE

COUNSEL FOR THE STATE

C/O OFFICE OF THE PROSECUTOR-GENERAL

CORPORATE HOUSE

WINDHOEK

TO: THE REGISTRAR

HIGH COURT OF NAMIBIA MAIN DIVISON

WINDHOEK

AND TO: ADV. S. S. MAKANDO

FIRST ACCUSED’S LEGAL PRACTITIONERS

WINDHOEK

AND TO: MESSRS UANIVI GAES INCORPORATED

SECOND ACCUSED’S LEGAL PRACTITIONERS

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WINDHOEK WEST

WINDHOEK