Windhoek — This could very well be a classic case of being at the wrong place at the wrong time, Magistrate Ingrid Unengu said on Tuesday when she acquitted Zola Pius Gawushe (27) a South African national, and Fikiri Said Maudwanga, a Tanzanian national (39) on all charges in the Windhoek Magistrate's Court.
Magistrate Unengu said the State failed to prove beyond a reasonable doubt the cocaine found in a room the pair rented from a notorious drug dealer was in their possession or that the two were dealing in the drugs.
After summarizing the evidence submitted by both the State and the defence, Unengu said she could come to no other conclusion that the version put forward by the defence was the most convincing.
Before providing the reasons for her ruling, however, Unengu said she wanted to clear up a common misconception that when a defence application for a Section 134 discharge is dismissed, the court must find the accused guilty.
A Section 134 application is when at the close of the State's case the defence applies for a discharge on the basis that insufficient evidence exists for a reasonable court acting carefully to convict an accused person.
She said whether a prima facie case exists or not the State has a duty to consider all facts before it. She said in this case the option of the second accused to remain silent was offset by the testimony of the first accused, which basically exonerated the co-accused.
She said while the cocaine was found in the room the two accused shared, the State could not prove beyond reasonable doubt that the drugs were in their possession.
Gawushe and Maudwanga were accused of dealing in 1 075 grams of cocaine worth N$537 500.
They were allegedly caught with 42 cream, bullet-like tubes wrapped in plastic and cellotape and another 12 stuffed in green socks in Windhoek's Pionierspark suburb on May 11, 2010. Laboratory reports confirmed that the 'bullets' were 5.7 to 6.2 cm in length and contained 49 percent and 46.4 percent cocaine respectively.
The two faced one count of dealing in a controlled dangerous dependence-producing drug and alternatively a charge of possession of controlled dangerous dependence-producing drugs. Both accused pleaded not guilty in October 2010, when their trial started and were denied bail.