Judgment State versus Jerry Munyama (Merits)

8/8/2019 Judgment State versus Jerry Munyama (Merits)

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D 2

CORAM : VAN NIEKERK, J

Heard on: 4, 5, 6, 9 February 2009; 2, 21, 22, 23 September 2009; 1, 5, 6, 7, 8, 9, 12, 16,

19, 20, 23, 27, 28 July 2010

Delivered: 11 August 2010

___________________________________________________________________________JUDGMENT

VAN NIEKERK, J: [1] The two accused in this matter were standing trial on several

charges, which are set out below as they appear in the indictment:

“1. FRAUD (against accused 1 and 2)

1st ALTERNATIVE: Theft (only against accused 1)

2ND ALTERNATIVE: 2 Counts of Theft by false pretences

(as separate counts) (only against accused 2)

3RD ALTERNATIVE: Theft (only against accused 2)

2. FORGERY (only against accused 1)

3. UTTERING A FORGED INSTRUMENT (only against accused 1)

COUNT 1: FRAUD

In that upon or between the period extending from 17 th May 2005 to 15 th November 2005and at or near Windhoek in the district of Windhoek the accused did wrongfully, unlawfully,falsely and with intend to defraud give out and pretend to Standard Bank and/or the Bank’sRelationship manager, Aletta Nghinanye Petrus and/or Cheryl Anna Jankowski and/orAnthea Yolandi Andrew that;

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● The copy of the resolution dated 16 th May 2005 printed on the Namibian Broadcasting

Corporation (NBC) letterhead and purportedly signed by the vice chairperson of the boardand another member of the board was a genuine and true extract of the resolution of the99th NBC board meeting held on 15 March 2008 at NBC boardroom in Windhoek, and/or

● In terms of the resolution thereof the Director-General (hereinafter referred to as the firstaccused) had been authorized to open an “NBC Executive Account” with any institutionso chosen by his office, and/or

●

Further that the “Executive Account” shall be handled exclusively by the first accusedand he shall report directly to the chairman of the Internal Audit Committee on alltransactions, and/or

● The first accused shall be the sole signatory to the said account and that all the moniesdeposited in that account shall not exceed the sum of N$500 000-00 at any given time,and/or

● Furthermore all bank queries and statements must be directed exclusively to the firstaccused, and/or

● That the office of the first accused in consultation with the chosen bank shall work outmodalities of direct correspondence on the affairs on the said account, and/or

● That he was authorized to deposit cheques totalling an amount of N$345 995-88 in thesaid account, and/or

● That he was entitled to withdraw and/or transfer monies from the said account and/or

● That he was entitled to payment from NBC in the sum of N$244 750-00 for work donefor NBC by Khomas Engineering.

The accused persons did then and there and by means of the false pretences induce StandardBank and or Aletta Nghinanye Petrus and/or Cheryl Anna Jankowski and/or Anthea

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Yolandi Andrew to the actual or potential loss or prejudice of NBC and/or NekambaKadhila and/or Hendrik Christiaan Jacobs to;

● believe some or all of these misrepresentations and/or

● open a bank account in the name of NBC Executive Account being accountnumber 241436044 at Gustav Voigts Centre branch giving the first accused all thepowers to operate the account as stated in the aforementioned resolution, and/or

●

allow the first accused person to deposit or cause to the be deposited a total amount of N$345 995-88 into the aforementioned account which money belonged and was therightful property of the Namibian Broadcasting Corporation, and/or

● allow the first accused person to withdraw or cause to be withdrawn at different intervalsvarious amounts of money from the aforementioned account without the authority andknowledge of the Namibia Broadcasting Corporation for his own personal gain and useuntil all the funds were exhausted from the account, and/or

● to honour cheques drawn in favour of Khomas Engineering by the first accused (whichcheques were presented and encashed by the second accused at Standard Bank, Katutura)allegedly as payment for work done on behalf of NBC by Khomas Engineering whereasboth accused person knew that Khomas Engineering was not owed money by NBC at therelevant time.

Whereas in truth and in fact the accused persons when they so gave out and pretended asaforesaid knew that the said representations were false and thus the accused persons did

commit the crime of fraud.

IN THE FIRST ALTERNATIVE TO COUNT 1(in terms of Section 156 of Act 51 of 1977, only against accused 1)

Theft That the first accused, Gerry Wilson Munyama is guilty of the crime of theft .

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In that upon or about the period extending from the 16 th May 2005 to the 15 th November 2005 and at or near Windhoek in the district of Windhoek the said accuseddid wrongfully, unlawfully and intentionally steal the sum of N$345 995-88, the

property of Namibian Broadcasting Corporation.

IN THE SECOND ALTERNATIVE TO COUNT 1 (as separate counts)Subcount 1(in terms of Section 156 of Act 51 of 1977, only against accused 2) That the second accused, Theodor Engelbrecht is guilty of the crime of theft byfalse pretences .

In that, upon or about the 4 th and 5 th July 2005 and at or near Standard Bank Katuturabranch in the district of Windhoek, the said second accused did unlawfully withintent to defraud and steal misrepresent to Standard Bank and or Cheryl AnnaJankowski , a bank teller, that the cheque drawn from the NBC Executive StandardBank account, number 241436044 and in favour of Khomas Engineering was avalid cheque for monies due and owing to Khomas Engineering by NBC and did,by means of the said misrepresentation obtain from Standard Bank the amount of N$97 750-00, the property of NBC, which amount the second accused did steal,well-knowing that NBC did not owe Khomas Engineering money at the timeand thus the second accused did commit the crime of theft by false pretences .

Subcount 2(in terms of Section 156 of Act 51 of 1977, only against accused 2) That the second accused, Theodor Engelbrecht is guilty of the crime of theft byfalse pretences. In that, upon the 18 th of July 2005 and at or near Standard Bank Katutura branchin the district of Windhoek, the said second accused did unlawfully with intent todefraud and steal misrepresent to Standard Bank and or Anthea Yolandi Andrew ,a bank teller, that the cheque drawn from the NBC Executive bank account number241436044 and in favour of Khomas Engineering was a valid cheque for moniesdue and owing to Khomas Engineering by NBC and did, by means of the saidmisrepresentation obtain from Standard Bank the amount of N$147 000-00, theproperty of NBC, which amount the second accused did steal, well knowing thatNBC did not owe Khomas Engineering money at the time, and thus the secondaccused did commit the crime of theft by false pretences .

IN THE THIRD ALTERNATIVE TO COUNT 1 (in terms of Section 156 of Act51 of 1977, only against accused 2)

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Theft

That the second accused, Theodor Engelbrecht is guilty of the crime of Theft.

In that upon or about the period extending from the 4 th of July to the 18 th of July 2005and at or near Standard Bank, Katutura branch in the district of Windhoek the saidaccused did wrongfully, unlawfully and intentionally steal the sum of N$244 750-00,the property of Namibian Broadcasting Corporation.

COUNT 2: FORGERY

That the first accused is guilty of the crime of forgery . In that, upon or about the 16 th May 2005 and at or near Windhoek in the district of Windhoek the said first accused did unlawfully, falsely and with intend thereby to defraud and to theprejudice of Namibian Broadcasting Corporation and/or Nekamba Kadhila and/or HendrikChristiaan Jacobs forged a resolution in writing to wit and extract of the resolution of the99th NBC board meeting held on 15th March 2005. COUNT 3: UTTERING A FORGED INSTRUMENT

That the first accused is guilty of crime of Uttering of a forged instrument knowing it to beforged.In that upon or about the 16 th May 2005 and at or near Windhoek, in the district of Windhoek the said first accused did unlawfully, falsely and with intend thereby to defraud and to theprejudice of Namibia Broadcasting Corporation and/or Nekamba Kadhila and/or HendrikChristiaan Jacobs offer, utter and put off the said forged document described in thepreceding count to with the resolution of the 99 th NBC Board meeting, to Standard Bank orAletta Nghinanye Petrus , the accused, when he so offered, uttered and put off the aforesaiddocument, well knowing it to have been forged.”

[2] During the presentation of the State’s case, accused no. 1 made several admissions in

terms of section 220 of the Criminal Procedure Act, 51 of 1977, which facilitated the case

against him. However, as these admissions are not admissible against accused no. 2, the State

still had to lead full evidence in an attempt to prove the case against him. At the close of the

State case, accused no. 1 closed his case. Mr Hinda on behalf of accused no. 2 then applied

for the latter’s discharge in terms of section 174 of the Criminal Procedure Act, 1977 (Act 51

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of 1977), on all the charges. Mr Marondedze on behalf of the State opposed the application.

After hearing argument on the application, the Court decided to recall one of the State

witnesses, Mr Prinz, on several aspects. The court also required clarification on certain

documents either referred to or handed in as exhibits during the course of the trial. This led

thereto that the Court requested that, if possible, further documentary evidence be handed in.

After several postponements to obtain the required information and hearing further argument,

I immediately discharged accused no. 2 and indicated that I would give reasons for this

decision during the main judgment.

Thereafter counsel for the State and accused no. 1 made their submissions in relation to the

merits.

[3] The State called several witnesses. In my view it is not necessary in the circumstances

of this case to deal with the evidence of each witness separately. Much of the evidence is

common cause, or formally admitted by accused no. 1 or not disputed by either of the

accused. I shall therefore set out the evidence in summary and narrative form and only deal

with the testimony of specific witnesses where required.

[4] During all relevant times and since 2003, accused no. 1 was the Director General of

the Namibian Broadcasting Corporation (“NBC”). During 2003 to 2005 the NBC did

business with Khomas Engineering CC (“KECC”). It is common cause that accused no. 2

was not a member of KECC. At the relevant time it seems that the sole member was one

Petrus Kapukwa, who subsequently passed away. However, accused no. 2 was generallyknown to persons at the NBC and on its Board as the representative of KECC with whom

NBC always dealt. Indeed the three contracts that featured most prominently during this trial

were signed by accused no. 2 on behalf of KECC in his capacity as “Contracts & Sales

Engineer”. Accused no. 2 also told the investigating officer, Mr Olivier, that he and Mr

Kapukwa were ‘directors’ of KECC. Furthermore, the evidence by Ms Jankowski of the

Bank where KECC held its account is that Kapukwa and accused no. 2 had joint signing

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rights on the current account. In my view this indicates that accused no. 2 was not just an

employee of KECC, but that he was intimately involved with the affairs of KECC.

[5] The NBC had several bank accounts which were held at First National Bank,

Nedbank, and Bank Windhoek. During 2002 the NBC was in financial trouble. Submissions

were made to the Namibian government which led to a N$100 million rescue plan, which also

involved a restructuring and retrenchment process. It is unclear whether the whole amount

was eventually paid, but at least substantial sums of money were paid to the NBC in

instalments. During about 2004/2005 the NBC had an overdraft facility with First National

Bank of N$20 million. The Corporation’s running expenses were barely covered by its

income.

[6] During November 2005 Mr Ben Biwa, NBC Board member and Chairman of the

Board’s Audit Committee was alerted by the Internal Audit Department of Standard Bank to

the fact that the NBC had a bank account at that bank. Having consulted with various entities

of the NBC, Mr Biwa established that the opening of such an account had not been

authorised. The bank then provided documentation and details relating to all the transactions

on the bank account.

[7] The evidence presented by the State establishes that at some stage before 17 May

2005 accused no. 1 had contacted Ms Aletha Petrus, the Relationship Manager of the Gustav

Voigts branch and stated that he wanted to open a bank account for his sole use as Director

General of the NBC. She explained that this could only be done if he could provide aresolution of the NBC Board authorising him to open such an account. Accused no. 1 then

stated that he had such a resolution and that he would provide it to her. This he did on 17

May 2005 when the bank account was opened. It is common cause that the document he

provided (Exh “A”) is a false extract of a resolution purportedly taken at the 99 th meeting of

the NBC Board held on 15 March 2005. According to the true minutes of the 99 th Board

meeting (Exh “H”) such a resolution had never been taken. The resolution was printed on a

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letter head of the NBC and was purportedly signed by the Board Vice Chairperson on 16 May

2005.

[8] The false resolution (i) authorised the office of the Director General to open an “NBC

Executive Account” with any financial institution chosen by the office; (ii) directed that this

account shall be handled exclusively by the Director General, who in turn would report

directly to the Chairman of the Internal Audit Committee on all transactions (the reporting

obviously never occurred); (iii) directed that the Director General shall be the sole signatory

to the said account; (iv) directed that the monies deposited in the account shall not exceed

N$500 000 at any time; (v) directed that all bank queries and statements be directed

exclusively by and to the Director General; and (vi) directed that the office of the Director

General shall “in consultation with the chosen Bank work out the modalities of direct

correspondence on the affairs of the said account.”

[9] When accused no. 1 opened the bank account he provided his residential address as

the registered address of the NBC. For the head office address and postal address he provided

a postal address belonging to his wife and her business associate and not to the NBC. On 1

June 2005 accused no. 1 deposited or caused to be deposited into the NBC Executive Account

a cheque in the amount of N$25 000, which was a donation by the First National Bank

Foundation to the NBC for staff training. Between 3 and 17 June 2005 accused no. 1 wrote

three cash cheques to the total amount of N$24 800 (Exh J1, J2 and J3).

[10] At the 99 th NBC board meeting accused no. 1 was authorised to obtain informationabout NBC’s unclaimed Old Mutual shares. It is common cause that he completed

documentation on behalf of NBC to claim the shares (Exh L1 and L2). On 1 July 2005 he

deposited or caused to be deposited the cheque made out to NBC for the sale value of the

shares to the amount of N$345 995-88. On the same date he wrote a cash cheque from the

NBC Executive Account for N$18 000 (Exh J4). On 5 July and 18 July he wrote two cheques

made out to KECC for N$97 759 and N$147 000, respectively (Exh J5 and J6). On 29 July

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2005 he wrote a cash cheque for N$48 000 (Exh J7), which was deposited into his personal

bank account also held at the Gustav Voigts branch of Standard Bank (see Exh J8). On 5, 15

and 22 August 2005 he made out three cash cheques to the value of N$6 000, N$2 500 and

N$1000 respectively (Exh J9, J10 and J11). On 15 November 2005 he wrote the last cash

cheque for N$420 (Exh J12) and closed the account by letter in which he stated the reason for

closure as “it is felt no more necessary” (Exh J13). The balance left after all these amounts

are deducted is N$525.88, which appears to have gone to bank costs. On the same day the

bank contacted Mr Biwa and the investigation into the NBC Executive Account commenced,

as mentioned above.

[10] Mr Biwa instructed Mr Hendrick Christiaan Jacobs to investigate the matter. The

latter was the Manager: Internal Audit during the period April 2003 to February 2006 at the

NBC. For a certain period during 2005 at about the time of the investigation he was also

acting as the General Manager: Finance. Mr Jacobs collected all the documentation he could

find relating to contracts between the NBC and KECC, as well as the documents supporting

payments made to KECC. Having reconciled all invoices and payments, he came to the

conclusion that NBC was not owed the amounts paid from the NBC Executive Account by

way of the two cheques for N$97 759 and N$147 000 (Exh J5 and J6) and that there were no

outstanding invoices to be paid to KECC.

[11] The matter was subsequently handed to the police for investigation. Mr Olivier, the

first investigating officer obtained accused no. 2’s explanation for the two payments to KECCand took a witness statement from him. Accused no. 2 said the two cheques were payment

for work done for NBC by KECC when installing air conditioning systems at Tsumkwe and

Gam. According to accused no. 2 KECC had not been paid for these services and he had

approached the NBC several times to obtain payment. Later he also approached accused no.

1 as the Director General of the NBC and these two cheques were then handed to him as

payment. He paid the two cheques into the bank account of KECC and withdrew the monies

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to pay salaries and creditors. As Mr Olivier had already been informed by Mr Jacobs that

NBC had not owed KECC any money, he requested accused no. 2 to provide him with

documentation to support his explanation. This was never done. Mr Olivier thereafter

contacted the offices of KECC on several occasions and left messages for accused no. 2, but

always only found the secretary. On one occasion he did get hold of accused no. 2 and

enquired after the documents. Accused no. 2 said that they should be at the offices and they

went there to look for the documents in the files, but nothing could be found. By this time,

KECC had already been sold to new owners. Accused no. 2 was eventually arrested during

October 2007.

[12] During January 2006 Mr Olivier informed Mr Jacobs of accused no. 2’s explanation.

Mr Jacobs specifically made enquiries from the Technical Services Department at NBC to

check whether there were invoices by KECC for such amounts, but none came to light.

[13] It is necessary to say something about the manner that the documentary evidence was

handled during the investigation and prior to the trial. Mr Jacobs handed all the

documentation he had over to Mr Olivier. The latter had difficulty reconciling the invoices

and payments made. He thereupon handed over the documentation to the then Chief

Management Accountant of the NBC, Ms Selma Kapena (now Pesha). She drew up a

document (J45) which was referred to during the trial as a spreadsheet. According to Mr

Jacobs the information on J45 is the same information that he reflected in his reconciliation,

but, as I understand it, he presented the information differently to the way that Ms Pesha haddone. However, his reconciliation was not handed in during the trial. After Ms Pesah had

drawn up her spreadsheet she handed the documentation back to Mr Olivier. Mr Olivier

testified that there is an exhibit register kept by the police, and that, as far as he could recall,

he recorded each invoice, requisition and cheque by its number and amount. However, when

the documents were passed from him to Ms Pesha and back, each and every document was

not ticked off against a control list or checked against the entries in the register. However, he

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was of the impression that he received back everything he had given to her. At some stage

thereafter the documents were mislaid while in police custody. A search was launched and it

appears that some, but not all of the documents were found. The prosecution was therefore

not able to hand in all the source documents for the information presented on the spreadsheet

(J45). This created doubt and uncertainty which the Court had to attempt to clarify, which, in

turn, caused delays. The fact of the lost documents eventually prejudiced the State in the

presentation of its case.

[14] It is the duty of the police to keep proper track of all documentary evidence collected

during an investigation and to see to it that such evidence is safely stored at all times while it

is in their custody. When documents which might be used as exhibits during any court

proceedings are handed over to any other person or authority it should be properly accounted

for by all involved and proper records should be kept setting out what is handed over with

such a degree of particularity that the records serve the purpose for which they are kept. This

is a task which should be carried out meticulously. An obvious safety measure is to make

sufficient certified copies of all such documents so that the originals are handled as little as

possible and to provide secondary evidence should the originals become lost.

[15] During the period January 2004 to November 2005 the NBC had three contracts with

KECC. The first contract for N$290 254.25 was for air conditioning systems at Gam (Exh

I(2). It was entered into between the parties after a tender process. A second contract was

concluded for Tsumkwe (Exh I(1)). This was done by extending the Gam contract to

Tsumkwe for reasons that are not relevant now. KECC provided a quotation for this work,

which was accepted, in the amount of N$152 975.00 (including VAT). In respect of both

Gam and Tsumkwe, additional work was required which NBC had not foreseen. KECC

provided two quotations, each for the same amount of N$54 972.30, which NBC accepted by

placing an order. At about the same time NBC also needed their services at Oshakati, for

which KEEC provided a quotation, leading to the conclusion of a third contract for N$224

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838.80 (Exh I(3)). The signatories in all three these contracts were accused no. 1 for NBC, in

his capacity as the Director-General and accused no. 2 for KEEC, in his capacity as

its “Contracts and Sales Engineer”.

[16] The system in place for processing payments under these contracts was as follows:

KECC had to provide an invoice in terms of the contract or, in the case of additional work, in

terms of the quotation and order. The Department of Technical Services would make out a

requisition for payment to the Finance Department. These documents would be forwarded,

sometimes with copies of the contract or order and/or explanatory motivations and/or

a “services/goods received voucher”, to the Finance Department. The requisition would

require several signatures, sometimes up to 6 signatures to approve payment of the invoice.

Once approved, a cheque would be made out in the name of the service provider, who would

be called to collect the cheque. No payment would be processed without at least an invoice.

Data relating to payments with a reference to the relevant cheque number was entered into

NBC’s computer system.

[17] KECC performed all the work required in terms of all three contracts, as well as the

additional work and presented invoices for payment. According to Mr Jacobs all these

invoices were paid and no unpaid invoices for any work done by KECC could be traced. It

was put on behalf of accused no. 2 to Mr Jacobs and Mr Prinz that KECC did some work in

respect of a tower at Rundu and Oshakati during the period February 2005 to May 2005.

Both of them stated that they were not aware of such work, but were prepared to concede, ineffect, that this was possible. However, Mr Jacobs’ evidence is to the effect that no invoices

whatsoever were traced in respect of any such work, if any was ever done.

[18] At this stage it becomes necessary to look closer at the spreadsheet J45 and the

supporting documents which were handed in during the trial. It became quite clear that not

all the invoices and cheques of which numbers are mentioned were handed in. As I said

before, these documents were lost. There is a cheque for N$89998.75 (Exh I(42)) for which

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there is no invoice. This amount allegedly represents the balance of the Tsumkwe contract. I

think this may be accepted.

[19] J45 also includes under the Oshakati contract an invoice 1153 (Exh I(27)) for N$14

145 which was paid by cheque 1153 (Exh I(31)) . These documents date from November

2003 and clearly have no relevance to the Oshakati contract. They simply serve to show that

such a payment was made for such an invoice during 2003 and should not have been reflected

under the Oshakati contract.

[20] Under the Tsumkwe contract there is an alleged invoice for N$58 653.60 which was

allegedly paid by cheque no. 1154. Both these documents were lost and not handed in during

the trial. There were no bank statements reflecting such a payment to KECC and no other

supporting documents like a goods received voucher or requisition. It was initially suggested

by Mrs Tommasi, counsel for accused no. 2, that this payment may also have been made

during 2003 as the cheque appears to have followed cheque 1153 paid during 2003.

However, when the Court ordered that this aspect be clarified, it became clear that the

computer system at NBC did not have any record of a payment to KECC by any cheque of

that number, nor was there any record of a payment of that amount to KECC. Cheque 1154

from the same account as cheque 1153 was not found, but the available information indicates

that that cheque was for another amount and made out to another payee. A cheque no. 1154

from another NBC account also had no bearing on the case before the Court.

[21] The question arises, as both Mr Jacobs and Ms Pesha testified that there was such aninvoice by KECC and that there was such a payment to KECC, how is it possible that no such

payment could be traced? Perhaps they made a mistake when they recorded the invoice

amount or the number of the cheque. Who knows? Without the source documents this

question cannot be answered. Mr Marondedze suggested that the data was perhaps not

entered into the system and that I should accept the testimony of the two witnesses that they

saw such documents and that I should find that that invoice of KECC had been paid. I find

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myself unable to do so. It is part of accused no. 2’s defence that not all KECC invoices had

been paid; that it did additional work for NBC at Rundu and Oshakati; and that the two

cheques from the NBC Executive Account J5 and J6 were payment for such work. It was

also established that sometimes invoices were mislaid between the Technical Services

Department and the Finance Department. It is so that one would in the normal course have

expected there to be some other paper work in the form of an order, quotation or requisition to

substantiate the fact that such work had indeed been done and that an invoice which was later

lost had indeed been processed, but it seems to me that Mr Jacobs was focused on whether

there were invoices, either paid or unpaid. The State did not present evidence that no other

work was done by KECC. As I said, Mr Jacobs concentrated on establishing whether there

were any unpaid invoices. This is also borne out by Mr Olivier’s testimony. Mr Jacobs

agreed that it was possible that KECC could have done additional work, but because he was

satisfied that KECC had not rendered any invoices for such work, this aspect did not appear

to concern him during his testimony. The fact is, though, that the computer records,

dependent as they are on the entering of data by human beings who perhaps did not do their

work properly, as Mr Marondedze suggested, did not confirm Mr Jacobs’ testimony that all

work for which invoices were rendered had been paid.

[22] I bear in mind that when accused no. 2 gave his first explanation to Mr Olivier, he

only said the work KECC did was for Tsumkwe and Gam, but during the trial his instructions

were that the work was in relation to Rundu and Oshakati. However, I do not think I candraw any firm conclusion from this discrepancy.

[23] The NBC would normally receive its annual capital funding about 6 months after the

new budget year which commenced on 1 April. Payments during the period about February

to about September were sometimes delayed because NBC did not have sufficient funds

pending the receipt of the capital funding. In these circumstances, suppliers, including

accused no. 2 on behalf of KECC, would demand payment of outstanding invoices or

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complain about non-payment. It is common cause that accused no. 2 also complained directly

at accused no. 1’s office about non-payment and met with him about this matter. Mr Prinz

also confirmed that accused no. 2 came to complain when the first payment on the Gam

contract was not paid on time. The Finance Department was approached and arrangements

were made to pay the invoice. According to him, accused no. 2 also came to complain a

second time later that year, i.e. in 2004. When one has regard to the dates of the various

invoices presented by KECC and the dates that payments were made, it is clear that they were

all paid relatively promptly during 2004. However, during 2005 it would seem that there is

further support in the objective facts for accused no. 2’s version. Having studied the

supporting documentation and the chronological time line (I attach hereto as Schedule 1 a

copy of the chronology of events which I drew up for myself in order to understand the

evidence better) in which invoices were presented and payments were made, it seems to me

that, although the invoice for the Tsumkwe contract for the amount of N$89 998.70 got lost, it

may have been invoice “NBC 04”of KECC. The important issue here is that the invoice must

have been rendered late in 2004 or early in 2005. Yet this invoice was only paid on 9

September 2005. This very late payment tends to confirm the version by accused no 2 put to

witnesses that there were outstanding payments and would certainly have been a cause for

complaint. There is also the mystery of the alleged payment for the invoice for N$58 653.60

which has not been solved. All these factors, taken cumulatively with the concession by both

Mr Jacobs and Mr Prinz that KECC may have done additional work at Rundu and Oshakati,leads me to the conclusion that there is doubt on the State’s case whether all invoices had

indeed been paid by NBC at the time that the cheques J5 and J6 were issued to KECC.

[24] I bear in mind that it is unlikely that accused no. 1 would have paid for legitimate

invoices due and payable by the NBC from the illegal account into which he could

conveniently dip for his own advantage. The question obviously arises why he would deplete

the amount available for his own purposes by paying the NBC’s debts. However, the gaps in

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the State case are such that in my view it did not prove beyond a reasonable doubt that these

amounts were not owed to KECC. By saying this I must not be taken to hold that NBC did in

fact owe these amounts to KECC.

[25] I now turn to the issue of the section 174 discharge in respect of accused no. 2.

Section 174 of the Criminal Procedure Act states that a court may return a verdict of not

guilty at the close of the case for the prosecution if the court is of the opinion that there is no

evidence that the accused committed the offence referred to in the charge or any offence of

which he may be convicted on the charge, i.e. a competent verdict.

[26] The various legal principles to be applied in applications of this nature have been

thoroughly discussed and set out in a judgment by M ULLER , J, namely S v Nakale and Others

2006 (2) NR 455 (HC). As was accepted in that judgment, the generally accepted approach is

to consider whether there is no evidence upon which a reasonable court, acting carefully,

might or could convict. (See R v Thiele 1918 AD 373; R v Shein 1925 AD 6 at 9; R v

Herholdt & Others (3) 1956 (2) SA 722 (WLD); R v Mall and Others (1) 1960 (2) SA 340

(NPD) 342; R v Mkize and Others 1960 (1) SA 276 (N)).

[27] Bearing in mind my reasoning on the evidence presented thus far, I was of the view at

the time that the evidence presented by the State was not such in relation to accused no 2 that,

if I acted carefully, I could convict him. I therefore preferred to discharge him at the end of

the State’s case.

[28] It is now time to consider on which charges I should convict accused no. 1. Theaccused admitted in terms of section 220 of the CPA that he did not have authority from the

NBC Board to open the NBC Executive Account and that the Board was unaware of the

account. Ms Petrus of the bank testified that she informed accused that in order to open the

account he would have to provide a resolution from the NBC Board authorising him to open

the account. The accused admitted that he provided her with a false extract of a resolution

printed on an official letterhead of the NBC and that the document was purportedly signed by

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the vice chairperson of the Board. Evidence was led that this person was not even at that

meeting. Although there is no direct evidence that accused no. 1 was the person who forged

the resolution, there is absolutely no doubt that he was the one who prepared this document

with intent to defraud, thereby causing prejudice to the NBC as alleged in the indictment.

[29] Both State counsel and Mr Isaacks for accused no.1 were in agreement that the

accused committed the crime of uttering by putting off the forged resolution to Ms Petrus or

Standard Bank. I agree with this view. My only concern is whether a conviction on this

count would not amount to a duplication of convictions if I also convict the accused on the

count of fraud. State counsel was of the view that it would not be a duplication, as each

offence is a separate offence with its own elements. Mr Isaacks submitted that I should not

convict accused of fraud, but rather of theft on the first alternative count. The issue of

duplication does therefore not arise on his argument.

[30] It is trite that there is not just one “test’ that should always be employed in all

circumstances to determine whether a duplication of convictions may occur. ( S v Gaseb 2000

NR 139 (SC); S v Nakale and others (No 1) 2007 (2) NR 405 (HC) at para [30]) In the Gaseb

case the following two tests were set out:

“The most commonly used tests are the single intent test and the same evidence test. Where

a person commits two acts of which each, standing alone, would be criminal, but does

so with a single intent, then he ought only to be indicted for, or convicted of, one offence

because the two acts constitute one criminal transaction. See R v Sabuyi 1905 TS 170 at 171.

This is the single intent test. If the evidence requisite to prove one criminal act necessarilyinvolves proof of another criminal act, both acts are to be considered as one transaction for

the purpose of a criminal transaction. But if the evidence necessary to prove one criminal act

is complete without the other criminal act being brought into the matter, the two acts are

separate criminal offences. See Landsdown and Campbell South African Criminal Law and

Procedure vol V at 229, 230 and the cases cited. This is the same evidence test.”

[31] In S v Nekongo 2001 NR 96 (HC), M ARITZ , J (as he then was dealt with the same

issue and stated (at 99D-100B):

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“Whether an accused can be convicted on both charges under those circumstances or whether

an accused's conduct constitutes in substance only one offence, must be considered against

the approach of this Court suggested to prevent an impermissible duplication of convictionsin the unreported judgment of S v Nico Willemse (Case No CR45/2000 delivered on 28 April

2000):

'1. Where, in substance, the accused has only committed one offence a

multiplicity of convictions is not to be allowed - irrespective of the number of

charges preferred by the prosecution against him or her. (See: R v Gordon

1909 EDC 254 at 268 and S v Davids 1998 (2) SACR 313 (C) at 316B).

2. In deciding whether on the proven facts of the case the accused's conduct

constitutes in substance a contravention of one or more of the offences he hasbeen charged with, the Court will adopt a common sense approach of what is

fair to the accused and to the State (per Selke AJP in R v Shelembe 1955 (4)

SA 410 (N) at 412 and Margo J in S v Ntswakele 1982 (1) SA 325 (T) at

330H).

3. It is impractical and virtually impossible to formulate a single or inclusive

and exhaustive test to provide the correct answer to that question in all the

circumstances (See: S v Prins and others 1977 (3) SA 807 (A) at 813 in fine),

but the application of certain useful practical guidelines may aid in arriving ata fair and just result (See: R v Kuzwayo 1960 (1) SA 340 (A) at 343H).

3.1 Firstly, the Court will consider the substantive differences (if

any) between the defined elements of the various offences

the accused has been charged with ( S v Grobler en 'n ander

1966 (1) SA 507 (A) at 512A; Du Toit et al: Commentary on

the Criminal Procedure Act , 4/16). If there are no such

differences or if the elements of the one offence will also

include all the elements of the other, a conviction of the most

inclusive or most serious of the offences should follow.

3.2 Regard being had to the definition of the offences and the

formulation thereof in the indictment, the Court will

determine whether the evidence necessary to establish one of

the charges will, at the same time also prove the commission

of one or more of the other. If so, ''the criminal conduct

imputed to the accused constitutes in substance only one

offence which could have been properly embodied in one all-embracing charge'' (per Wessels JA in S v Grobler en 'n

30



ander (supra at 523B)) and the accused should only be

convicted of the one.

3.3 If neither the aforementioned guidelines suggests an answer,but the proven imputed conduct of the accused constitutes a

continuous transaction carried out with a single intent, that

too may be indicative that the accused has in effect only

committed one crime in substance. See: R v Sabuyi 1905 TS

170. However, in applying this guideline the Court should be

sensitive to the distinction drawn in our law ''between motive

and intent and different intents inherent in different offences''

(per Wessels JA in S V Grobler en 'n ander (supra at 523F-G)

).

3.4 These practical guidelines are not rules of law and, should

the application still leave an inconclusive or unsatisfactory

result, the Court should allow itself to be guided by its

experience, wisdom and sense of fairness. See: S v Davids

1998 (2) SACR 313 (C) at 316D.' ”

[32] Applying these principles and guidelines, I am of the view that it would be an

impermissible duplication of convictions if I convict accused no. 1 on both the fraud and the

uttering. I say so for the following reasons. When accused no. 1 presented the forged

resolution to Ms Petrus at Standard Bank he had only one intention and that was to deceive

her into allowing him to open the illegal bank account. He had a single intention throughout.

By relying on the act of presenting the forged resolution with the necessary intention as one

of the factual bases for the charge of fraud as set out in the indictment, the charge of uttering

is encapsulated by the charge of fraud on the facts of this case. In substance accused no. 1

only committed one offence and that was fraud.

[33] Accused no. 1 committed fraud not only on the above mentioned factual basis. When

he operated on the account by depositing the two cheques and by making withdrawals and

cheques payments from the account, he falsely misrepresented that he was entitled to do so to

the actual and/or potential prejudice of both Standard Bank and the NBC.

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[34] The next question to be decided is whether accused no. 1 misappropriated any of the

monies which in fact belonged to the NBC. It is clear that by opening the account at Standard

Bank and limiting the lines of communication between him and the Bank to him exclusively

and by providing personal addresses instead of that of the NBC, accused no. 1 wanted to

evade detection by the NBC. I have no doubt that all the cash payments from the account

were unlawfully used by accused no. 1 for his own purposes. Even though accused no. 1’s

formal admissions do not go this far, he also did not testify to give an innocent explanation.

There is no other explanation on the facts. Mr Isaacks was constrained to concede this and, in

my view, properly so. This means that it can safely be deducted beyond a reasonable doubt

that at least the amount of N$100 720.00 was misappropriated by accused no. 1.

[35] What about the payments made to KECC? I have thought long and hard about this,

especially about why accused no. 1 would have willingly paid real debts of the NBC from this

account. I suspect that these amounts, or at least not the full amounts, were not owing to

KECC, but suspicion is not enough. Unfortunately the gaps in the State’s case which I have

discussed above also serve to benefit this accused. While I am sure that there was at least

potential prejudice to the full amount alleged by the State when the cheques of N$25 000 by

the FNB Foundation and N$320 995.99 in respect of the Old Mutual shares were deposited

into the illegal account, the actual patrimonial prejudice suffered must be limited to N$100

720.00.

[36] In the result I convict accused no. 1 on the first count of fraud and not guilty on thefirst alternative count. I also convict him on the second count of forgery. I find him not

guilty on the third count of uttering.

____________________VAN NIEKERK, J

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SCHEDULE 1

S v Munyama and Another - CHRONOLOGY

19 Nov 2003 Invoice by KECC for 2 Panasonic air conditioners for N$14 145.00

19 Nov 2003 Goods received voucher 27111 for 2 Panasonic air conditioners20 Nov 2003 Requisition 29896 for above invoice approved21 Nov 2003 NBC order to KECC for 2 Panasonic air conditioners for N$14 145.0024 Nov 2003 Payment of above invoice by #1153 for N$14 145.00

*2 June 2004 Invoice NBC 01 : 50% Deposit/Payment Gam : N$145 127.125 July 2004 Parties sign Gam Contract Tender 2/2004 for N$290 254.25*13 July 2004 Requisition 28664 for Invoice NBC 01 Gam approved* 14 July 2004 Payment of invoice NBC 01 by #1357 for N$145 127.12**19 Aug 2004 KECC quotation for extended contract Tsumkwe

*13 Sep 2004 Invoice NBC 02 : First part Payment Gam : N$71 754.25*14 Sep 2004 Requisition 28557 for Invoice NBC 02 Gam approved*15 Sep 2004 Payment of Invoice NBC 02 Gam by #1443 for N$71 754.25*19 Oct 2004 Invoice NBC 03 Payment Gam : N$89 000**19 Oct 2004 First Prinz memo to accused no. 1 : Extension of Gam contract toTsumkwe*3 Nov 2004 Requisition 29813 for Invoice NBC 03 Gam approved*4 Nov 2004 Payment for Invoice NBC 03 by #1503 for N$89 0005 Nov 2004 Parties sign Tsumkwe Contract Tender 2/2004 for N$152 9755 Nov 2004 Parties sign Oshakati Contract Quote 1/2004 for N$224 838.80***? Nov 2004 Invoice NBC 05: 60% Deposit/Payment: 134 903.28 (Oshakati?)

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*10 Nov 2004 Invoice NBC 06 : Additional Work Gam : N$54 972.30**15 Nov 04 Invoice MOD 03: 50% Deposit/Payment Tsumkwe : N$76 487.50

**18 Nov 04 Invoice NBC 07: Additional Work Tsumkwe: N$54 972.30***29 Nov 04 Invoice NBC 08 : 2nd payment Oshakati: N$67 451.64***30 Nov 04 Requisition for Invoice NBC 05 ??? Oshakati approved*30 Nov 2004 Requisition 28573 for Invoice NBC 06 Gam approved**30 Nov 04 Requisition 28572 for Invoice NBC 07 Tsumkwe approved***30 Nov 04 Requisition 28571 for Invoice NBC 08 Oshakati approved**1 Dec 04 Requisition 29818 for Invoice MOD 03: Tsumkwe approved*2 Dec 2004 Payment Invoice NBC 06 Gam by #1543 for N$54 972.30

7 Dec 2004 Second Prinz memo Extension of Gam contract to Tsumkwe and for

AW at Tsumkwe and motivation re Oshakati contract

**9 Dec 04 Payment Invoice NBC MOD 03 Tsumkwe #1550 for N$76487.50**9 Dec 04 Payment Invoice NBC 07 A/W Tsumkwe # 1554***9 Dec 2004 Payment Invoice NBC 05: # 1554 (Oshakati?)***9 Dec 2004 Payment Invoice NBC 08: 2nd payment Oshakati # 1554

***31 Jan 2005 Invoice NBC 09 for OSH 1/2004 3rd payment (as per invoice 5 and 6)N$22 483.88

***2 Feb 2005 Requisition 28576 for Invoice NBC 09 Oshakati approved***11 Feb 2005 Payment Invoice NBC 09 Oshakati by # 1607 for N$22 483.8815 March 2005 99th NBC Board Meeting16 March 2005 Share confirmation form completed (Exh L)17 March 2005 Accused 1 letter to Old Mutual to claim shares3 May 2005 Letter FNB to accused no. 1 re N$25 000 sponsorship16 May 2005 False extract of resolution

17 May 2005 NBS Executive Account opened at Standard Bank19 May 2005 FNB sponsorship # handed over to NBC1 June 2005 Deposited FNB sponsorship # for N$25 000 into NBC Exec Acc3 June 2005 #100001 NBC Exec Acc for N$ 5 000 cash7 June 2005 #100002 NBC Exec Acc for N$18 600 cash17 June 2005 #100004 NBC Exec Acc for N$1 200 cash (Total 24 800)1 July 2005 Deposited Old Mutual shares #s into NBC Exec Acc1 July 2005 #100005 NBC Exec Acc for N$18 000 cash5 July 2005 #100006 NBC Exec Acc for N$97 750 K Eng CC18 July 2005 #100009 NBC Exec Acc for N$147 000 K Eng CC29 July 2005 #100011 NBC Exec Acc for N$48 000 cash and deposited into Acc 1’s

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acc5 Aug 2005 #100012 NBC Exec Acc for N$6 000 cash

15 Aug 2005 #100013 NBC Exec Acc for N$2 500 cash22 Aug 2005 #100015 NBC Exec Acc for N$1 000 cash

**9 Sep 2005 Payment by # 1846 for N$89 998.75 Tsumkwe (where is the invoice – could it be NBC 04)?

15 Nov 2005 #100014 NBC Exec Acc for N$420 cash15 Nov 2005 NBC Exec Acc closed15 Nov 2005 Biwa orders Jacobs to investigate NBC Exec Acc

Appearance for the parties: For the State: Mr E Marondedze

Office of the Prosecutor-General

For accused no. 1: Mr H Oosthuizen,

Instr. by Koep & Partners

later Mr B Isaacks,Isaacks & Benz

Instr. by Directorate of Legal Aid

For accused no. 2: Mr G Hinda and Mrs M Tommasi

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Instr. by Dammert Law Chambers

later Mr G Hinda,

Instr. by Swartz & Bock

30

Documents

Judgment State versus Jerry Munyama (Merits)