Ex-Namdeb man’s diamond theft appeal fails

[Michael Alexander]

Here's a link to an Oranjemund related article in Today's Namibian.

LINK: http://www.namibian.com.na/news-articles/national/full-story/archive/2010/april/article/ex-namdeb-mans-diamond-theft-appeal-fails/

[toonfandangl]

Ex-Namdeb man's diamond theft appeal fails

By: WERNER MENGES
THE conviction and six-year jail term of a former Namdeb employee who has been convicted of stealing diamonds worth some N$438 000 from his employer are remaining unchanged after his appeal was dismissed in the Supreme Court this week.

Neither the verdict nor the sentence that High Court Judge Christie Liebenberg decided on in the trial of former Namdeb diesel mechanic James Vilho Auala two years ago can be faulted, Acting Judge of Appeal Simpson Mtambanengwe concluded in an appeal judgement handed down in the Supreme Court on Tuesday.
Auala, then 32 years old, was sentenced to an effective jail term of six years and also a fine of N$50 000, or an additional prison term of three years, on June 5 2008. Judge Liebenberg sentenced Auala in the High Court in Windhoek after he had convicted him on charges of theft of unpolished diamonds, robbery and escaping before being locked up following his arrest.

Auala was arrested on January 18 2005 after he had passed through the security checkpoints controlling access to Namdeb's mining area at Oranjemund. Auala was exiting the mining area when he was arrested, after he had been recorded on security cameras taking a suspicious object out of the mining area.
He had also been recorded taking a similar object out of the mining area on January 10 2005.
With the second incident, the object dropped out of Auala's short trousers when he was confronted by security officers.
The object was later put into the handbag of the Police officer in command of the Protected Resources Unit at the town, but Auala grabbed the officer's bag and managed to escape out of the window of the office where he and the officer were before he could be locked up.
He was soon cornered and the handbag and object were recovered. When the object was inspected after that, it was discovered that it was a ball of Prestik adhesive putty, from which 28 uncut diamonds, weighing 61,91 carats, were then recovered.
The diamonds were valued at N$438 220,92.
Auala did not testify in his own defence during his trial.
His defence lawyer, Profysen Muluti, however argued without success that it had not been proven that the object that Auala had with him contained diamonds.
With the appeal, Auala's lawyer, Deidre Sauls, conceded that it had been proven that Auala was found in possession of the diamonds in question. She however continued to argue that it had not been proven that the diamonds had been stolen from Namdeb, or that it had been in the lawful possession of the company or its security personnel before Auala was caught with the stones.
No direct evidence on the origin or ownership of the gems were placed before the court during Auala's trial. Judge Liebenberg however reasoned that, since Namdeb is the holder of a mining licence which entitles it to mine for diamonds within the restricted mining area at Oranjemund, from where Auala was coming when he was caught with the diamonds, it could be inferred that Namdeb is the owner of diamonds found within that mining area for the duration of its licence.
Acting Judge of Appeal Mtambanengwe agreed that this inference that had been drawn by the judge was justified, and became the only reasonable inference to be drawn in the absence of any contradictory evidence on the part of Auala.
As a result, he also agreed with Judge Liebenberg's conclusion that Auala had stolen the 28 diamonds from Namdeb.
Judge Liebenberg's approach to the sentence that he decided to impose was also found to have been "unassailable", and Auala's appeal against his sentence was similarly dismissed.
Judge of Appeal Gerhard Maritz and Acting Judge of Appeal Johan Strydom agreed with Judge Mtambanengwe's decision.
Deputy Prosecutor General Orben Sibeya represented the State in the trial and with the appeal.


What happened to the item the security cameras took of him on the 10th Jan 2005 or was that N$50 000 fine or three extra years the punishment.
                                                                                               

[Andrew Darné]

He wasn't apprehended with the first object.
The fine or second sentance was for escaping and theft of the officer's handbag.

"The object was later put into the handbag of the Police officer in command of the Protected Resources Unit at the town, but Auala grabbed the officer's bag and managed to escape out of the window of the office where he and the officer were before he could be locked up."