Werner Menges
7 May 2008
Windhoek — A NAMDEB employee caught red-handed while trying to smuggle a parcel of diamonds out of Namdeb's mining area at Oranjemund was not proven to have stolen the gemstones from his employer, the High Court in Windhoek found yesterday.
John Leon Beukes was employed as a boilermaker by Namdeb when he was arrested on September 15 2004, after he had been caught trying to carry a parcel of 149 diamonds, weighing 214,89 carats and later valued at N$657 715, out of the Oranjemund mining area.
Beukes (40), who now runs his own ship-repair business at Walvis Bay, went on trial before Judge Collins Parker on a charge of theft, alternatively possession, of unpolished diamonds on Tuesday last week.
It was alleged that when Beukes passed through an X-ray scanner in a security section through which people have to exit the mining area, a dark spot was noticed in his pelvic area.
When Beukes was first searched, nothing untoward was found on him.
It was then decided to do a full-body search.
At this point Beukes indicated that such a search would be unnecessary, and removed an object, wrapped in masking tape and Prestik sticky putty, from his back, it was alleged.
The diamonds were found in this object.
At the start of his trial, Beukes pleaded not guilty to the theft charge, but admitted guilt on the alternative charge.
The prosecution, represented by State advocate Andrew Muvirimi, did not accept Beukes's plea on the main charge, and proceeded to try and prove Beukes's guilt on that count.
They failed.
Choosing not to testify in his own defence, Beukes kept his silence until after Judge Parker had announced his verdict yesterday.
After the prosecution wrapped up its case last week, Beukes's defence counsel, Gerson Hinda, closed his client's case without presenting any evidence on his behalf.
By the time the case was postponed yesterday until Friday, when Beukes is set to be sentenced, the court had still not heard from Beukes where the diamonds found on him had come from.
This was the prosecution's duty to prove, though, Judge Parker indicated.
With Beukes on the witness stand yesterday to testify in mitigation of the sentence, Muvirimi tried to ask him to explain his possession of the diamonds.
Judge Parker quickly intervened, telling the prosecutor that he thought such a question was unfair, because with the possession of the gems it did not matter where the diamonds had come from.
The Diamond Act, under which Beukes was charged, did not differentiate based on the origin of diamonds illegally possessed in terms of the Act, the Judge noted.
A lack of evidence on the origin of the diamonds was also the shortcoming that tripped up the prosecution in its attempt to prove the theft charge against Beukes.
Judge Parker noted in his judgement that the allegation in that charge was that Beukes had stolen diamonds that belonged to or were in possession of Namdeb or one of its security officers, Sarah Ishuna, who noticed the suspicious spot on the X-ray.
To secure a conviction, the State had to prove beyond reasonable doubt that Beukes had stolen the diamonds and that the diamonds were the property of or in possession of Namdeb or Ishuna, Judge Parker stated.
He found that the prosecution did not succeed in meeting these requirements for a conviction on the theft count.
Ishuna was not called to testify that the diamonds were hers or that she was in lawful possession of them before Beukes was found with the stones, Judge Parker noted.
He further found that there was no other evidence to show that the diamonds had been stolen from Namdeb.
Two witnesses who testified for the prosecution told the court that Namdeb's diamonds were kept under closed-circuit television surveillance in locked and sealed areas.
No break-ins at these areas or missing diamonds had been reported before Beukes was found with the stones, Judge Parker summarised the evidence.
He concluded that under the circumstances it would have been "gravely unsafe and unsatisfactory" to convict Beukes on the theft charge.
Muvirimi asked the Judge to sentence Beukes to a direct term of imprisonment.
He said the fact that the Diamond Act set the same maximum sentence of up to 20 years' imprisonment or a fine of up to N$1 million for both the theft and possession of unpolished diamonds showed that the two offences were regarded as equally serious.
Hinda argued that sending Beukes to prison would result in the more than 50 people he employed losing their jobs.
It was a misconception that if a convicted person was not sent to jail, he was not punished, Hinda added.
He said Beukes was in a position to pay a fine.
Beukes has been free on bail of N$80 000 since the day after his arrest.
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