CRIMINAL LAW: CRIMINAL LIABILITY OF DIRECTORS OR MEMBERS FOR ACTS COMMITTED IN OFFICIAL CAPACITY ON BEHALF OF THE CORPORATE ENTITY CIRCUMSTANCIAL EVIDENCE

CRIMINAL LAW: CRIMINAL LIABILITY OF DIRECTORS OR MEMBERS FOR ACTS COMMITTED IN OFFICIAL CAPACITY ON BEHALF OF THE CORPORATE ENTITY

CIRCUMSTANCIAL EVIDENCE

In this matter, the accused persons were were charged with dealing in cocaine in contravention of section 2(c) and possession of cocaine in contravention of section 2(d) of the Abuse of Dependence – Producing Substances and Rehabilitation Act 41 of 1971, and money laundering in contravention of section 4(b)(i) of the Prevention of Organised Crime Act 29 of 2004. It was alleged that the accused imported cocaine from Brazil into Namibia through an entity. The accused denied the charges professing no knowledge of cocaine and insisted that the entity only imported printing paper and not cocaine.

In finding the accused persons guilty on count 1, SIBEYA J considered the evidence and principles of law, and held that:

1. Circumstantial evidence must not be assessed in piece-meal but should be considered in its totality and inferences may be drawn from proven facts.
2. A director of a company or a member of a close corporation may be found criminally liable for acts committed in an official capacity on behalf of the corporate entity when the provisions of s 332(5) of the CPA are invoked, notwithstanding the protection that must be afforded to the close corporation being a separate legal entity, as where fraud, dishonesty or improper conduct is proven, the court may consider same and go beyond the corporate personality in order to arrive at the true facts and impute liability accordingly.
3. There is no absolute exclusion of unconstitutionally or irregularly obtained evidence as this depends on whether or not admitting such evidence constitutes failure of justice or not and whether there is a fair trial or not and, therefore, dependent on the facts of each case as stated in S v Shikunga and Another 1997 NR 156 (SC).
4. The chain of custody of exhibits considered and found to have been established that the exhibits from the container which remained intact were delivered to the laboratory and analysed accordingly and found to contain cocaine.
5. The charge of money laundering in this matter constituted a duplication of the charge of dealing in cocaine and resultantly, accused 1 and 2 found not guilty on the charge of money laundering.
6. when all the evidence is considered in totality and not in isolation, the state proved the charge of dealing in cocaine beyond a reasonable doubt and versions of accused 1 and 2 found not to be reasonably possibly true and rejected as false and accused 1 and 2 found guilty of dealing in cocaine.

S v Noble NAHCMD 25 August 2022