Government Institutions Pension Fund v Smith and Another (HC-MD-CIV-ACT-OTH-2022/05175) [2024] NAHCMD 691 (14 November 2024)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

RULING ON APPLICATION FOR ABSOLUTION FROM THE INSTANCE

CASE NO: HC-MD-CIV-ACT-OTH-2022/05175

In the matter between:

GOVERNMENT INSTITUTIONS PENSION FUND PLAINTIFF

and

MARTIN EUGEN SMITH 1^ST DEFENDANT

FABIOLA AOSES 2^ND DEFENDANT

Neutral Citation: Government Institutions Pension Fund v Smith (HC-MD-CIV-ACT-OTH-2022/05175) [2024] NAHCMD 691 (14 November 2024)

Coram: MASUKU J

Heard: 24, 25, 26, 27 June and 7 August 2024

Delivered: 14 November 2024

Flynote: Civil action – Claim for damages resulting from money allegedly misappropriated by employees – Civil Procedure – Absolution from the instance – Rule 100 – Principles applicable to absolution from the instance discussed – Rule 28 – Necessity to identify documents or recordings discovered at case management conference if disputed – Legislation – Application of Electronic Transactions Act 4 of 2019 and repeal of Computer Evidence Act of 1985 discussed.

Summary: The plaintiff, Government Institution Pension Fund, sued two former employees for damages in the amount of N$18 664 657,59, sustained as a result of alleged fraudulent transactions perpetrated against the plaintiff by its two employees cited as defendants, namely, Mr Smith and Ms Aoses. The defendants denied liability thus joining issue with the plaintiff. The plaintiff called two witnesses in support of its case. At the end of the plaintiff’s case, an application for absolution from the instance was moved on behalf of the defendants. The plaintiff opposed the application.

Held: That the test for granting an application for absolution from the instance at the close of the plaintiff’s case is not whether the evidence led by the plaintiff establishes what is required to be proved but whether there is evidence upon which a reasonable court, applying its mind reasonably to the evidence adduced, could or might find for the plaintiff.

Held that: A party who disputes the admissibility of a document, analogue or digital recording, must, in terms of rule 28(7)(b), raise that issue at case management stage. If that is not done, the said document, analogue or digital recording must be regarded as admissible without further proof. In the instant case, the defendants raised that issue for the first time in cross-examination and the court was entitled to regard the said documents admissible.

Held further that: The Electronic Transactions Act 4 of 2019 repealed the Computer Evidence Act of 1985. The Electronic Transactions Act, allows the admission of electronic evidence and provides that such evidence may not be excluded merely because it is electronic evidence. It may also be admitted where it is the best evidence that no other evidence could reasonably be expected to be obtained in the circumstances. In dealing with that evidence, the court must have regard to the reliability of that evidence, the integrity of the information system in which it was captured or maintained and the manner in which the evidence was identified.

Held: That there was evidence adduced by the plaintiff’s witnesses which suggested that the defendants had a lot of money in their accounts and that they worked in concert using computers. The investigation established a prima facie case that the defendants manipulated some of the information stored in the plaintiff’s system for paying annuitants. As such, the defendants have to be called to give their own side of the story.

Application for absolution from the instance refused with costs.

ORDER

1. The application for absolution from the instance, is dismissed.

2. The defendants are ordered to pay the plaintiff’s costs, jointly and severally, the one paying and the other being absolved, with such costs being consequent upon the employment of one instructing and one instructed legal practitioner.

3. The matter is postponed 5 December 2024 at 08:30 for allocation of dates for continuation of the trial.

JUDGMENT

MASUKU, J:

Introduction

1. A multimillion dollar question arises for determination in this matter involving a claim for millions of Namibian Dollars. The question acuminates to the following: is this a proper case in which the defendants are entitled to an order for absolution from the instance in terms of rule 100 of this court’s rules?

2. Before answering this all-important question, it is desirable that a brief history of the matter, as found in the pleadings, is chronicled. I proceed to do so below.

Background

3. The plaintiff in this matter is the Government Institutions Pension Fund, a pension fund established in terms of the Pension Funds Act 24 of 1956. It is registered by the Namibia Institutions Supervisory Authority and its place of business is situated at Corner of Dr Kenneth David Kaunda Street and Goethe Street in Windhoek.

4. The first defendant is Mr Martin Eugen Smith, a major male adult who was previously employed by the plaintiff as Administrator Annuity. He is resident in Windhoek. The second defendant, is Ms Fabiola Aoses, a major female adult who was previously employed by the plaintiff in a similar position as the first defendant. She is resident in Rehoboth.

5. The plaintiff alleged in its particulars of claim that on or about October 2022, it discovered, and became aware of the fact that both defendants, acting jointly and in concert with one another, and in breach of fiduciary duties to the plaintiff, misappropriated to themselves, an amount of N$18,664 657,59, through a fraudulent scheme for their own benefit or for the benefit of third parties.

6. The plaintiff accordingly approached this court, seeking payment of the aforesaid amount from the defendants jointly and severally, the one paying, and the other being absolved and for interest on the same amount and costs. The defendants defended the matter and denied any knowledge or complicity in the alleged misappropriation of the amount concerned.

7. This then resulted in a trial before this court in which the plaintiff called two witnesses to testify. They were cross-examined at length on behalf of the defendants. At the close of the plaintiff’s case, the defendants moved an application for absolution from the instance. As indicated above, it is that application that the court is presently seized with.

8. In order to appreciate the circumstances in which this claim is alleged to arise, it is necessary that the court briefly chronicles the evidence led on behalf of the plaintiff. I proceeded to do so below.

The evidence led

9. The first witness called by the plaintiff was Mr Josef Taaya Vilho, a major internal auditor of the plaintiff. It was his evidence that on 11 August 2022, the internal audit department received a request from the office of the chief executive officer of the plaintiff. His department was requested to look into an issue regarding an inquiry from the plaintiff’s Otjiwarongo regional office in respect of the annuitant Ms Jessica Gowases. This particular annuitant claimed that she had not received her children’s pension for the school calendar year 2019. She called to inquire about her monthly benefit the payment of which had inexplicably stopped.

10. The audit department was accordingly requested to look into this particular issue and to also ascertain whether there were any similar cases to that of Ms Gowases. Mr Vilho testified that they conducted their investigation into the issue and decided to cast their focus as far back as March 2020 when the plaintiff disabled biometric operations due to the COVID-19 pandemic.

11. The witness testified that during their investigations, they uncovered other similar cases, where forged documents, school letters, full birth certificates, and bank confirmation letters had been used to process payment of backdated annuities. It was his evidence that the annuity division of the plaintiff, is the one charged with processing the payment of annuities. As a result, the investigation primarily centred on that particular division.

12. It was his evidence that searches were conducted for any suspicious transactions, which may have been processed. The findings revealed numerous suspicious transactions that had been processed. He testified further that they examined the bank accounts into which payments from the suspicious transactions were made, and also as to how often such accounts received payment from the plaintiff.

13. The witness testified that the investigation discovered that Ms Gowases’ payments were up-to-date but inexplicably, they had been paid into a different account which does not belong to her. The investigations further showed that the proof of study and the certificates of existence, which enabled such payments to be made to her, were fictitious and this Ms Gowases herself confirmed. She informed the investigators that she had never attended school in Windhoek as per the proof of study that was attached to her claim and eventually processed on the plaintiff’s system.

14. Further testimony by this witness uncovered that the said annuitant in question received payment purportedly from the plaintiff in the amount of N$21 027,33 from a questionable source on 15 July 2022. This amount was paid into Ms Gowases’ account and as a result, she was requested to provide the investigation with her bank statement to confirm such payment.

15. The witness testified further that when Ms Gowases inquired about her payment, she was informed by the plaintiff’s employees that the system indicated that she had been paid and was informed of the exact amount paid to her. However, when the mentioned amount was reportedly made to her, she did not receive, a corresponding amount as initially communicated to her by the plaintiff.

16. The records revealed that the plaintiff had not made such a payment to the annuitant in question. This accordingly raised red flags because when the plaintiff makes payment to an annuitant, the reference reads ‘GIPF FUND’, with a unique number, followed by an EFT number. The reference used in these suspicious transactions to the annuity returns did not indicate the staff members’ names, which was the proper procedure.

17. The witness testified that in their search for bank account numbers that had been frequently used for payments from suspicious transactions, included an attempt to link such accounts to the plaintiff’s employees. These employees would be the ones who processed the payments into such accounts as well as the employees that amended the banking details of the annuitants on the system. This was made possible because the system clearly indicates the details of the last person that would have modified the particulars of the annuitants.

18. Mr Vilho testified that the names of the defendants appeared on the system as the ones who amended the particulars of the annuitants on the plaintiff’s system. This resulted in the amounts being fraudulently paid into the accounts of those in whose favour the amendments by the defendants had been made and regarded as annuitants when they were not genuine annuitants.

19. The witness testified further that they discovered numerous forged documents from the laptop that had been allocated to the first defendant. They further discovered that the defendants were in regular communication with one another. In this regard, they would indicate reference numbers of the annuitants that they were targeting and they would process such payments to the fictitious accounts, which had already been used frequently, but did not belong to the annuitants reflected.

20. This witness’ further evidence was that they also visited some schools and universities reflected as having enrolled some students in order to inquire as to whether the persons who appeared on the school letters and university letters were in fact, enrolled, or registered therein. It was his evidence that all the schools and universities informed them that such letters presented to the plaintiff had been forged, and the persons reflected as beneficiaries, were unknown to them.

21. He testified further that the account numbers from which the money was transferred to purchase the properties registered in the names of the defendants was part of the bank accounts that appeared to have been frequently used to fraudulently transfer the funds belonging to annuitants.

22. The witness further testified that he could state without diffidence that the money used by the first defendant to purchase Erf 757 Kleine Kuppe (Extension 1) in the municipality of Windhoek and Erf 370 Matutura (Extension 1) in the municipality of Swakopmund, is money that belongs to the plaintiff and which was fraudulently converted into those fraudulent accounts. That was the extent of the important aspects of Mr Vilho’s evidence.

23. The second and last witness called by the plaintiff, was Mr Ignatius Manyando, the plaintiff’s manager: Annuities. He testified that he was the manager of the annuities division of the plaintiff. He is responsible for the annuity, payroll and administration, claims processing and pension services of the plaintiff.

24. He testified that on 6 July 2022, his division received an inquiry from the plaintiff’s Otjiwarongo Regional Office, in respect of the child answering by the name Jessica R Gowases and referred to earlier. It was claimed that this child did not receive her pension for the 2019 school calendar year. She therefore inquired about her annuity payments which had been stopped.

25. It was his evidence that the plaintiff, suspends annuities, if proof of life or proof of studies have not been submitted to the plaintiff. Upon a quick investigation, it was discovered that payments due to this annuitant were up-to-date but shockingly, they had been paid to an account that does not belong to her.

26. He testified further that they discovered that the proof of study and certificate of existence that enabled such payments to be made, were fictitious. This the annuitant also confirmed. Ms Gowases told the witness that she had never attended school in Windhoek as per the proof of study that was attached to her claim which was processed in the system.

27. Additionally, he testified, during the investigations, they discovered that the payments reportedly made to the annuitant were made to an FNB account number which the annuitant confirmed does not belong to her. Such payments were made in line with a fictitious banking confirmation letter. These supporting documents, it was his evidence, were contrary to the authentic details provided by the annuitant, namely, her proof of study letter and banking details. The witness attached the correct documents to his witness’ statement, together with those that he alleged had been forged.

28. Mr Manyando testified further that an investigation carried out by the plaintiff revealed that the defendants were the members of staff who captured the data which led to several dubious payments. It was his evidence that the defendants’ responsibilities amongst others, were to do verifications and processing, which involved them ensuring that the documents pertaining to the claims are in order and that they conform to the plaintiff standards, which include clarity of the documents and authenticity. He testified further that the defendants were responsible for confirming the banking particulars of the annuitants, and ensure that a particular account number provided does indeed belong to the annuitant in question. They were also required to ensure that the bank account reflected in respect of an annuitant, was still active.

29. It was his evidence that the defendants were also responsible for data capturing and amendments on the plaintiff’s system. They were the individuals who were key in loading data onto the system, based on the information they received from the annuitants. In cases where there were discrepancies, they were required to request the most recent data and information from the annuitants. Lastly, the defendants were responsible for benefit processing, which was the actual processing of the benefits on the system, such as payments in relation to school letters, payments, and biometrics related payments.

30. He testified further that the plaintiff uses internal controls that require employees to log in their personal passwords when operating the system and when working on the plaintiff’s members’ requests for payment. The system records the time when changes are effected on the information maintained in the system. It was his evidence that the investigation revealed that the defendants’ credentials were used to effect changes on the plaintiff’s system. As a result, suspicious bank details and bank confirmation letters were used, resulting in fraudulent payments being made. The witness provided exhibits which showed the user and forged banking confirmation letters. These were attached to his witness’ statement.

31. The witness gave evidence regarding the payment to Ms Gowases which is in line with the evidence of the previous witnesses. For that reason, I will not repeat his evidence. He did however confirm that investigations revealed that the plaintiff had not made any payment as reflected to Ms Gowases. He testified that during investigations, the plaintiff uncovered a number of forged bank confirmation letters, which were processed by the defendants. They found bank confirmation letters which had names of different account holders, but the account numbers were inexplicably the same.

32. Mr Manyando testified that having found compelling evidence against the defendants, the plaintiff initiated a process of suspension of the defendants from duty in order to ensure that unhindered investigations were conducted. The second defendant was that suspended on 12 August 2022, whereas the first defendant was suspended on 15 August 2022.

33. It was his evidence that the investigations reflected that the full amount of the loss was N$18 664 657, 59. This figure was substantiated by a list of accounts, indicating the total loss suffered by the plaintiff. Lastly, Mr Manyando testified that in his view, the defendants wrongfully and unlawfully misappropriated the plaintiff’s money, and that they were therefore liable to repay the said amount to the plaintiff.

34. This was the extent of the evidence adduced by these witnesses. Needless to say, the witnesses were cross-examined at great length by the defendants’ legal practitioner. It is not necessary, for present purposes, and properly considering the nature of an application for absolution from the instance, to delve much into the cross-examination, particularly to make findings on credibility in that regard.

35. I shall now proceed to deal with the law applicable to rule 100. I will, in the process, in particular, consider the cases that deal with the application and to apply the principles extracted therefrom to the facts of this case. In doing so, I will particularly deal with the grounds raised on the defendants’ behalf in support of the application for absolution from the instance.

The law applicable to absolution from the instance

36. Rule 100(1), of this court’s rules reads as follows:

‘(1) At the close of the case for the plaintiff the defendant may apply for absolution from the instance, in which case the –

1. defendant or his or her legal practitioner may address the court;

2. plaintiff or his or her legal practitioner may reply; and

3. defendant or his or her legal practitioner may thereafter reply to any matter arising out of the address of the plaintiff or his legal practitioner.’

[37] It is a common cause that the provisions of rule 100, although they set out the procedure to be followed in the event an application for absolution from the instance is moved, do not prescribe what considerations the court should take into account in either refusing or granting the said application. All I can confirm is that the procedure outlined in rule 100(1) above, was followed in the instant case. In order to decide whether or not the application in the instant case is meritorious, regard must be had to decided cases, which constitute a lighthouse as one navigates the contours of this application.

[38] One of the most celebrated cases in this jurisdiction on absolution from the instance, is the Supreme Court judgment in Stier v Henke,¹ where the court reasoned as follows:

‘[4] At 92F-G Harms JA in Gordon Lloyd Page &Associates v Rivera and Another 2001 (1) SA 88, referred to the formulation of the test to be applied by a trial court when absolution is applied for at the end of the plaintiff’s case as appears in Clause Neon Light (SA) v Daniel 1976 (4) SA (A) at 409G-H:

“. . . When absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to the evidence, could or might (not should, nor ought to) find for the plaintiff. . . Harms JA went on to explain at 92H-93A:

“This implies that a plaintiff has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Co Ltd v Van der Schyff 1972 (1) SA (A) at 37G-38A); Schmidt Bewysreg 4^th ed at 91-2). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one. The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is “evidence upon which upon which a reasonable man might find for the plaintiff”, (Gascoyne (loc cit)) – a test which had its origin in jury trials when the “reasonable man” was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The Court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another “reasonable” person or court. Having said this, absolution at the end of a plaintiff’s case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice.’

[39] Yet, in Ashikoto v Prefered Investment Property Fund,² this court dealt with absolution in the following terms:

‘[11] Furthermore, there is the principle that a court should be chary in granting an order for absolution from the instance unless the occasion arises. If the occasion arises, the court should order it in the interest of justice. . . In my view whether the occasion has arisen or has not arisen depends on whether the plaintiff has made out a prima facie case – in the sense that there is evidence relating to all the elements of the claim upon which “the court could find for the plaintiff”. . . If plaintiff fails to make out a prima facie case, the occasion has arisen to grant absolution from the instance. That is the manner in which I determine the present application.’

[40] The primary question for determination, having had regard to the test as applied in the cases cited above, is whether the occasion has arisen in this case for the court grant the application for absolution from the instance. In order to decide that very question, it is necessary to have regard to the argument presented by both parties. This should enable the court, having weighed what has been submitted, to decide whether it is appropriate to grant the said application. Is there evidence adduced by the plaintiff in this case, dealing with all the material aspects of the claim and upon which this court may and not should, find for the plaintiff?

The arguments presented

[41] It should be mentioned from the onset that both counsel were at one, regarding the principles applicable to the question for determination. They however parted company when it came to the application of the relevant principles to the facts of this case.

[42] Mr Katuvesirauina, for the defendants, argued that this case is a prime candidate for this court to grant absolution from the instance. In his argument, he reasoned that the plaintiff’s case is based on hearsay evidence. This, he argued was the case because although the plaintiff, in support of its case relied on some documents, which were alleged to be forged, the institutions, including schools, universities or officials therefrom, were not called to testify and lend support to the plaintiff’s assertions.

[43] Secondly, the defendants’ counsel further submitted that the plaintiff relied on and submitted into evidence, several computer print-outs without following the mandatory provisions of the Computer Evidence Act 32 of 1985. Such documents, he argued, were tendered in contravention of the said Act and should these be properly excluded, as they should, the plaintiff’s case is dead in the water, with no prospect of resuscitation.

[44] Learned counsel further submitted with all the force and persuasion at his command, that the plaintiff failed to call witnesses who could corroborate the evidence of the two witnesses called by the plaintiff. As a result, he argued that there was no evidence adduced by the plaintiff to substantiate the allegation that the defendants misappropriated the amount claimed from them. Furthermore, he argued that there was no evidence that the defendants received the amount claimed from them.

[45] Last, but by no means least, he submitted that the documents handed in by the plaintiff into evidence, were not properly before court as the persons who compiled same, were not called as witnesses. He further argued that as far as the systems of the plaintiff and how they operate are concerned, there were no experts called to explain the operations of the said systems. As such, he argued, the court should find that there is no proper and admissible evidence supporting the plaintiff’s claim. He accordingly urged the court to grant the application with costs.

[46] Mr Ntinda’s arguments were a horse of a different colour. With his characteristic calmness but with necessary vigour and conviction, he compellingly argued that the defendants’ arguments are without substance and that this court must do the right thing – namely find that the occasion has not arisen in this case for the court to grant the application for absolution from the instance.

[47] Mr Ntinda argued that the defendants rely for their submissions on an Act of Parliament that has since been repealed. He argued that if proper regard is had to the applicable legislation at this time, namely, the Electronic Transactions Act 4 of 2019, the argument by the defendants, is liable to be dismissed as the documents introduced by the plaintiff in evidence, are admissible and fall neatly within the circumference of the provisions of the above Act.

[48] Mr Ntinda further argued that the submissions made on the defendants’ behalf that the documents, including the report of the investigations, are inadmissible for the reason that the persons who compiled the said documents were not called as witnesses, have no merit. He submitted that the defendants raised this issue after the horses had already bolted. This is so because the defendants never indicated any objection at the appropriate time to the employment of the said documents as evidence during the trial.

[49] Having outlined the arguments presented to the court on behalf of both protagonists, it is now opportune that the court should determine the major question, namely whether this is a proper case in which the granting of the application for absolution from the instance, is appropriate. I proceed to answer that very question in the succeeding portions of this ruling.

Determination

The failure to call witnesses in relation to discovered reports

[50] In the array of issues raised and discussed above, it is fitting that I commence the determination of the issues in contention by engaging the argument that the documents relied on, especially those related to the forensic report filed by the plaintiff, must be excluded. It is unclear whether the defendants argue that the said documents are hearsay or that they are, for any reason, inadmissible and that the court should have no regard to them.

[51] It is necessary, in this connection, to have regard to the provisions of rule 28(7)(a) and (b), which have the following rendering:

‘(7) When the parties prepare a case management report referred to in rule 24 for the purpose of the case management conference –

1. the discovery affidavit referred to in subrule (4) must form part of such report;

2. unless a document, analogue or digital recording listed under subrule (4)(a) is specifically for whatever reason, it must be regarded as admissible without further proof, but not that the contents thereof are true;

3. if the admissibility of a document, analogue or digital recording referred to in subrule (4) is disputed, the party disputing it must briefly state the basis for the dispute in the report.’

[52] It is clear, from the foregoing, that a party to action proceedings is required, once it takes the view that certain digital recordings, analogue or documents sought to be produced, are disputed, to indicate the objection to the admission of the said documents or other material. Furthermore, that disputing party must also state the grounds, albeit briefly, for the disputation of the admission of that document, analogue or digital recording.

[53] I am of the considered view that the object of requiring this process at this early stage of case management, is to avoid disputes regarding discovered documents paralysing the progression of the trial once the case has been called. It is thus beyond question that the stage at which the defendant in this case should have properly taken issue with the documents the plaintiff discovered or sought to discover, was at case management stage. This was evidently not done.

[54] A party, in the shoes of the defendants, who participated in the case management process, including the discovery of the documents proposed to be used at trial, and the pre-trial conference, cannot, at trial, particularly after the plaintiff closes its case, be heard to be making reverberating sounds of protestation and discontent regarding admissibility of the said documents that they have known about since discovery. The trial is too late a stage for a party to express discontent with issues of admissibility. In fact, at that stage, it must be considered that the horse has already bolted and to attempt to close the stables then, is just a waste of time, money and effort. The documents in question, are thus deemed admissible in terms of rule 27(4)(a), quoted above, as there was not dispute to their admission timeously raised.

[55] It would appear to me that the rule-maker was of the considered view that issues of admissibility of documents, analogue or digital recordings should be settled at the stage of case management. This is consistent with the overriding objectives of judicial case management. In this wise, once the matter goes to trial, the court should not lightly be bogged down with issues of admissibility, especially without appropriate notice being given at the appropriate time. Legal practitioners must accordingly give effect to this subrule and ensure that trials proceed in earnest without disruptive applications and fanciful arguments being moved during the course of the trial as this may compromise the ability of the court to dispose of trials fairly, speedily and effectively, within the applicable disposal benchmarks.

Failure to follow the provisions of the Computer Evidence Act 32 of 1985

[56] The next argument presented on the defendants’ behalf and on the basis of which the court was urged to grant absolution, was that there were several documents printed out from the plaintiff’s computer systems and that the peremptory provisions of the Computer Evidence Act, cited in full above, had not been followed. In particular, it was contended that the provisions of s 2(3)(a) of that Act, which are peremptory, had not been followed by the plaintiff, thus rendering reliance on these documents in contravention of the said Act.

[57] This argument need not detain the court much longer. Mr Ntinda, correctly pointed out in his argument, that the defendants had, in raising this issue, impermissibly relied on legislation that was repealed in its entirety. This is eminently correct. The Computer Evidence Act was repealed and superseded by the Electronic Transactions Act 4 of 2019, (‘the Act’). Counsel for the defendants does not appear to have done his research correctly as he led the court to the past, leaving the present and future completely out of the equation. Counsel have an abiding duty to familiarise themselves with the applicable law, including making assurances doubly sure that any legislation relied upon remains extant so as not to mislead the court.

[58] Section 25 of the Act, reads as follows:

‘25(1) In any legal proceedings, nothing in the application of the rules of evidence may be applied in such a manner that it would have the effect that computer evidence is inadmissible –

1. on the sole ground that it is computer evidence; or

2. if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.

(2) When evidence is admitted in terms of this section, the court must assess the weight to be given to that evidence.

(3) In assessing the evidential weight of computer evidence, the court must have regard to –

(a) the reliability of the manner in which the computer evidence was generated, stored or communicated;

(b) the integrity of the information system in which the computer evidence was recorded, stored and maintained;

(c) the manner in which the originator of the computer evidence was identified; and

(d) any other relevant factor.’

[59] It is now a fact of life that our lives, actions, interactions, communications, business and personal pursuits have been pervaded in material ways, by the use of technology. Banks, courts, revenue authorities, municipalities and agencies dealing with safety and security, to mention but a few, have by and large resorted to computers for recording, storing and generating information that may later be available as evidence. This stark reality dawned on the legislature, hence the promulgation of the Act, which serves to conduce the production of computer generated evidence, with necessary safeguards.

[60] To willy-nilly reject computer-generated evidence on the sole ground that it is generated by a computer, which cannot testify as to its modus operandi, does not suffice. The defendants argued that there were no persons called who dealt with and operated the computers from which the information sought to be admitted was captured, nor who would explain how the computers operate in relation to the information in question. I am of the view that there is no merit in the defendants’ challenge.

[61] The defendants seem to raise the objection for no other reason than that the information sought to be relied upon, was generated by a computer. This information, it must not be forgotten, included information pointing to the defendants being the ones who changed certain documents that belong to the plaintiff in relation to some of the cases, which it is alleged the money claimed was siphoned from. I am accordingly of the considered view that the defendants’ challenge at this stage of the proceedings, is weak and must be dismissed.³

Absence of evidence suggesting that the defendants received the money in question

[62] Mr Katuvesirauina further argued that there is no evidence led by the plaintiff, which tended to show that the defendants were the beneficiaries of the amount claimed or that they received the money in question. The evidence led by the plaintiff is to the effect that the defendants, as employees of the plaintiff, took advantage of the plaintiff’s systems and through a fraudulent scheme, targeted certain annuitants and used their laptops in that enterprise.

[63] The evidence led suggests that the defendants’ laptops were seized and some incriminating information, including messages between the two defendants, where they referred to a ‘Project’, ‘Deal’ and ‘Bio List’, were recovered. It would also appear that the defendants received some money into their accounts from what appears to be fraudulent sources connected to the plaintiff’s funds. It is not in doubt and was not denied in cross-examination that the first defendant’s accounts were found with large sums of money, which was preserved and later forfeited in terms of the Prevention of Organised Crime Act 29 2004⁴. The second defendant also had some property that was similarly attached.⁵

[64] The argument by Mr Katuvesirauina that there is no evidence regarding the receipt by the defendants of the amount claimed, in my view, flies in the face of the evidence adduced by the plaintiff’s witnesses. Annexure 6, to the final investigation report, which was admitted in evidence, lists all the amounts that are alleged to have been converted from the plaintiff’s accounts by the defendants to other accounts and from which they appear to have ultimately benefitted. It is only fair that the defendants should be afforded an opportunity to deal with the allegations against them, including explaining, where necessary, the information captured and produced in evidence by the plaintiff.

[65] I do agree that the plaintiff did not call some witnesses, for instance, Ms Gowases and the institutions and schools from which it was alleged the annuitants were connected. Does the failure to call those witnesses fatally affect the plaintiff’s case, as argued on behalf of the defendants at this stage of the proceedings?

[66] I do not think so. From the evidence adduced, the plaintiff’s witnesses testified that from the information they had on their system, including the schools or universities and bank account numbers and proof of existence filed and the account numbers to which the monies were paid, showed some discrepancies. I am of the considered view that the failure to call these witnesses, cannot, at this stage, be regarded as fatal to the plaintiff’s case, considering the standard applicable to the application for absolution from the instance.

Conclusion

[67] In view of the discussions above and the conclusions reached, it appears to me that the proper order to issue, in the circumstances, is to dismiss the application. I am not convinced that this case presents itself as one in which the application for absolution from the instance, should be granted.

Costs

[68] The question of costs now looms large. The general rule that ordinarily applies, unless there are some compelling circumstances pleaded or apparent from the case, is that costs should follow the event. I am not persuaded nor has any prevailing argument been presented to show that there is need to depart from that beaten track. The defendants will accordingly bear the costs of this application. For the avoidance of doubt, I state that the costs involved in this matter, are not subject to rule 32(11), because this application is not interlocutory in nature, form or effect.

Order

[69] Proper regard being had to the conclusions above, I am of the considered opinion that the following order is condign:

1. The application for absolution from the instance, is dismissed.

2. The defendants are ordered to pay the plaintiff’s costs, jointly and severally, the one paying and the other being absolved, with such costs being upon the employment of one instructing and one instructed legal practitioner.

3. The matter is postponed 5 December 2024 at 08:30 for allocation of dates for continuation of the trial.

___________

T S MASUKU

Judge

APPEARANCES

PLAINTIFF: M Ntinda

Instructed by: Sisa Namandje & Co. Inc., Windhoek

DEFENDANTS: M Katuvesirauina

Of Chris Mayumbelo & Co., Windhoek