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Tuesday, April 23, 2002 - Web posted at 9:33:10 pm GMT Magistrate will have to face same charges all over againWERNER MENGESTHE High Court yesterday added to the woes of former Gobabis Public Prosecutor, Elly Hamunyela, when it set aside her acquittal on five charges of fraud and ordered that she be re-tried. Hamunyela's setback in her battle against a string of fraud charges, alternatively theft, came in an appeal judgement by Judge Nic Hannah, with Judge Gerhard Maritz agreeing. Hamunyela, who has been suspended from her position as Prosecutor, did not arrive at court, nor did she have a legal representative present, when the State's appeal against her acquittal on the five charges was heard on March 28. In the trial which was the subject of the appeal Hamunyela was pronounced not guilty by Magistrate Uaatjo Uanivi on five charges of fraud allegedly committed between November 12 1999 and March 17 2000. It was alleged that she and two co-accused - George Simana and Joseph Kwere, who had both been court orderlies at the Gobabis Magistrate's Court - participated in a scheme in which they allegedly submitted false claims for witnesses to be compensated for their expenses in attending court proceedings, with the trio then sharing in the proceeds. Having pleaded guilty to two and three charges of theft respectively, Simana and Kwere were sentenced to a fine of N$1 400 or 16 months' imprisonment, and to a fine of N$1 600 or 18 months' imprisonment respectively. These sentences were set aside on appeal and on March 28 substituted with a prison term of one year for Simana and 18 months for Kwere. Hamunyela denied the charges, in which N$5 576 was allegedly falsely claimed from the State for witness fees and expenses. Magistrate Uanivi was however not at all impressed with their testimony. He discharged Hamunyela's case at the end of the prosecution's case, remarking that in his opinion the State did not have sufficient evidence for Hamunyela to have to answer charges. In that case "the accused should be left to be free from this crap and enjoy the freedom", the Magistrate said. Judge Hannah noted that the five offences Hamunyela had been charged with were not in dispute. What was in dispute was what role, if any, she had played. In four of the charges she also certified that information about a State witness who went on to falsely claim expenses was correct, when it was false, the Judge stated. Added to this was evidence from four witnesses - including Kwere and Simana - implicating her. Magistrate Uanivi indicated that in his opinion as these witnesses were involved in the scheme, they had an incentive to lie and lay all the blame at Hamunyela's door. The Magistrate rejected their evidence. But according to Judge Hannah the undoubted shortcomings in the four's evidence were not of such a magnitude that an outright rejection of their accounts was justified. With Magistrate Uanivi having made major findings on credibility, including the "crap" reference, he could not envisage that a fair trial would take place if the same magistrate presided again, Judge Hannah stated. He ordered that the acquittal be set aside, and that Hamunyela be tried again from scratch. Hamunyela is involved in three High Court trials involving 27 charges in connection with the same scheme. These continue from May 28, before Judge Mavis Gibson, from June 4 before Acting Judge John Manyarara, and from August 5 before Judge Elton Hoff. |
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