Court name
Supreme Court
Case name
S v Goabab and Another
Media neutral citation
[2012] NASC 25
Judge
Shivute CJ













REPORTABLE



CASE NO.: SA 45/2010



IN THE SUPREME COURT
OF NAMIBIA



In the matter between:














THE
STATE



Appellant








and














SIMON
NAMA GOABAB


ABRAHAM
JOHN GEORGE







First Respondent



Second Respondent







Coram: SHIVUTE
CJ, MARITZ JA, and MAINGA JA



Heard: 27 June
2012



Order: 27 June
2012



Delivered: 15
November 2012



____________________________________________________________________



APPEAL JUDGMENT
(REASONS)



____________________________________________________________________



SHIVUTE CJ (MARITZ JA and
MAINGA JA concurring):








  1. This appeal by the State
    against the discharge of the respondents was heard on 27 June 2012.
    On the same day, we allowed the appeal and indicated that reasons
    were to follow. These are the reasons.









  1. The
    respondents, then as accused persons, were arraigned in the High
    Court on an indictment containing three principal charges. In
    respect of counts 1 and 2 the respondents were jointly charged with
    corruptly using office or position for gratification in
    contravention of s 43(1) of the Anti-Corruption Act, 8 of 2003 (the
    Act). In summary, count 1 is to the effect that they used an
    official purchase order and claim form to rent a motor vehicle with
    registration number N 82959 W on 1 March 2007 from a car rental
    company for private use at a discounted governmental rate. Count 2,
    in brief, is that they rented a motor vehicle with registration
    number DDS 937 FS on 15 March 2007 from a car rental company for
    private use and later paid the rental charges with an official
    cheque drawn against the account of the National Assembly. The
    charge of fraud was preferred against them as an alternative to the
    first count. In respect of the second count, fraud and theft were
    preferred as first and second alternative charges respectively.
    Additionally
    ,
    the first respondent was charged with corruptly using office or
    position for gratification in contravention of s 43(1) of the Act by
    using a motor vehicle with registration number GRN 343 for personal
    gain or benefit without authority or permission of the owner, with
    the charge of use of motor vehicle without owner’s consent in
    contravention of s 83(2) of the Road Traffic and Transport Act, 22
    of 1999 as the alternative charge. The indictment shows that s 43(1)
    of the Act under which the main charges were preferred, was to be
    read with ss 32
    1,
    43(2)
    2,
    43(3)
    3
    and 49
    4
    of the Act. Both respondents pleaded not guilty to all the charges
    and tendered written plea explanations. In summary, the first
    respondent produced a lengthy document advancing a convoluted
    argument denying in effect that he had committed any offence at all
    and contending that the conduct complained of did not amount to any
    offence in terms of the Act. The second respondent likewise denied
    that he had any intention to commit the alleged offences and
    maintained in effect that he was merely obeying orders or
    instructions given to him by the first respondent, his superior.









  1. At the conclusion of the
    State’s case the respondents applied for their discharge in
    terms of s 174 of the Criminal Procedure Act, 51 of 1977 (Criminal
    Procedure Act). The Court below granted the application and
    discharged them on the three main counts. They were, however, placed
    on their defence in respect of the alternative charges. The State
    made application for leave to appeal against the discharge of the
    respondents, which application was granted by the Court below on 6
    September 2011.








Background




  1. At the time of the
    events leading to the prosecution of the respondents, the first
    respondent was the Secretary of the National Assembly appointed or
    designated as such pursuant to Article 52 of the Namibian
    Constitution. As Secretary of the National Assembly, the first
    respondent was the accounting officer and, as such, the most senior
    administrative officer at that institution. The second respondent
    was the Chief Accountant and Acting Financial Advisor to the
    National Assembly. As Secretary of the National Assembly, the first
    respondent was given a motor vehicle allowance entitling him to
    purchase a motor vehicle of his choice at or below a benchmark level
    which he could use both for private and official purposes. In terms
    of regulations governing the motor vehicle scheme of which the first
    respondent was a member, officials who receive motor vehicle
    allowances were precluded from using State motor vehicles except in
    certain circumscribed circumstances to which I shall advert later on
    in this judgment.









  1. On or about 1 March
    2007, the first respondent rented a motor vehicle with registration
    number N 82959 W from Budget Rent-a-Car (the rental company). The
    two respondents collectively arranged, through the medium of their
    subordinates, for the rental of the vehicles using a government
    'purchase order and claim form' which would entitle the first
    respondent to rent the vehicle at the government rental rate which
    is lower than the rate charged by the rental company to private
    persons. When one of the subordinates questioned the propriety of
    the instruction to rent a vehicle for the first respondent’s
    personal use, both respondents entered the office of the subordinate
    concerned. There and then the second respondent ordered the
    subordinate to rent the vehicle for the first respondent for 15
    days. The vehicle was rented without following the established
    procedures of having the intended expenditure first scrutinised and
    approved by a structure in the National Assembly known as the
    'Economising Committee' and having first obtained a requisition for
    the expenditure. It was contended on behalf of the respondents at
    the trial that the agreement between the respondents was that the
    first respondent would pay the amount owing to the rental company
    out of his pocket in due course. The purchase order having been
    issued by the National Assembly, it did not come as a surprise that
    the tax invoice in the amount of N$4379,54 was sent to that
    institution for payment. This amount was, however, never paid and
    the rental company ultimately wrote it off as bad debt, the National
    Assembly being recorded in the rental company's books as the bad
    debtor.








  1. On 15 March 2007, the
    first respondent rented a second motor vehicle with registration
    number DDS 937 FS (the second vehicle) from the rental company,
    which vehicle was returned to the rental company on 24 April 2007.
    The rental company took the imprint of the first respondent’s
    credit card and ‘stopped’ an amount of N$5000. Another
    N$5000 was credited to the rental company on 4 April 2007 when the
    vehicle was not returned by the date agreed in the contract. No
    further amounts could be obtained from the first respondent’s
    credit card since the card was reported lost. The second vehicle’s
    rental charges totalling N$18 497,20 were ultimately paid by the
    National Assembly with government cheque number 14612068. This
    payment was authorised by the respondents with the first respondent
    signing as the 'accounting officer' while the second respondent
    signed both as 'claimant' and 'authorising officer'. Although the
    first respondent allegedly undertook to repay this amount to the
    National Assembly, he did so only after he had been arrested by
    agents of the Anti-Corruption Commission on 12 June 2007 in
    connection with this matter.







  1. On
    25 May 2007
    ,
    the first respondent was found driving a government vehicle with
    registration number GRN 343. The key to the vehicle was given to the
    first respondent on the instructions of the second respondent. A
    document officially known as a 'trip authority' normally constitutes
    the written authorisation for the driver of a government vehicle to
    drive the vehicle in question. Attempts were made by the second
    respondent to have at least two subordinates enter the first
    respondent's particulars on the trip authority but this attempt was
    politely but firmly rebuffed by the officials concerned. When the
    first respondent was asked by a police officer to produce the trip
    authority, he allegedly replied that he had forgotten the document
    at the office. The relevant trip authority in respect of the vehicle
    did not bear his particulars at all. In terms of the regulations
    governing the motor vehicle scheme in respect of which a motor
    vehicle allowance is paid to members, the member must utilise his or
    her vehicle for all official journeys arising from his or her
    duties. When a member cannot use his or her vehicle, e.g. when it is
    in for repairs, he or she must make alternative private arrangements
    to secure a suitable vehicle and the regulation makes it clear that
    no State vehicle will be provided in those circumstances
    5.
    A State vehicle may, however, be provided to the member of the
    scheme on the approval of the Permanent Secretary or Accounting
    Officer when the member concerned is compelled to travel on roads
    that are not suitable for use of his or her private vehicle.
    6
    But members' attention is expressly drawn to paragraph 7.1 of the
    regulations that states that a member who receives the motor vehicle
    allowance should acquire and maintain a vehicle suitable for the
    nature of his or her job. An example is given there that if a member
    is required to travel on a regular basis to areas where a four wheel
    vehicle would be appropriate, it would be foolhardy for such member
    to buy a sedan in terms of the scheme. The overall object of the
    scheme was, according to the regulation, to reduce the provision of
    State vehicles to the members receiving car allowances
    .7








Findings by trial
court




  1. In her reasons for the
    discharge of the respondents on the main charges, the trial Judge
    reasoned that in enacting the Act, the Legislature did not intend
    that courts should usurp the State’s function to discipline
    its staff unless the transgression in question fell within the
    framework of criminal law. If the intention of the Legislature was
    to criminalise misconduct, the Legislature would have said so in
    clear and unambiguous language. The learned Judge opined that
    corruption was merely an extension of the crime of bribery which
    implied that there must be a ‘corruptee’ and
    ‘corruptor’. The Court below found that in the absence
    of evidence pointing to the existence of a corruptor, no sufficient
    evidence had been adduced to support the commission of the offence
    of corruption. The Judge ultimately held that not enough evidence
    leading to the conclusion that the respondents committed the offence
    referred to in the main counts, namely corruptly using office or
    position for gratification in contravention of s 43(1) of the Act,
    had been led. The Court below found, however, that the alternative
    counts fell within the scope and ambit of criminal law and evidence
    had been adduced by the State upon which a reasonable court, acting
    carefully, may convict. Consequently, the respondents as mentioned
    before were placed on their defence on the alternative counts.









  1. The Court below
    initially did not give reasons for granting the appellant leave to
    appeal. The reasons therefor were furnished a few days before the
    commencement of the hearing of the appeal. In those reasons, the
    learned Judge magnanimously conceded that she did not apply her mind
    properly to the issues raised by the appellant when the application
    for the discharge of the respondents was granted. It was also
    accepted in the reasons that in effect the court erred in
    discharging the respondents without considering that the respondents
    may be convicted on the alternative charges as s 174 of the Criminal
    Procedure Act appears to provide. The High Court expressed a view
    that this Court may come to a different conclusion on that score and
    that for those reasons it had granted the then applicant leave to
    appeal.








Counsel’s
submissions on appeal




  1. In this Court Mr D F
    Small argued the appeal on behalf of the appellant while Mr G H
    Oosthuizen assisted by Mr G Narib argued the appeal for the first
    respondent. Mr Z J Grobler argued the appeal on behalf of the second
    respondent.








  1. Counsel
    for the appellant submitted that the phrase ‘any offence’
    used in s 174 of the Criminal Procedure Act
    8
    meant that if there is evidence that the accused committed, for
    example, an offence which is a competent verdict on such charge or
    an attempt to do so, the court may refuse to discharge the accused
    .
    It was further submitted on behalf of the appellant that the court
    below misdirected itself by allegedly adding an element to the
    offence created by s 43(1) of the Act when it reasoned that the
    appellant had to prove the payment of a gratification to the public
    officer who allows himself or herself to be corrupted and by finding
    that
    ,
    for there to be a corruptor, there must equally be a corruptee.
    Counsel argued that the court below misdirected itself when it
    decided that the statutory crime of corruption was an extension of
    the common law crime of bribery. He contended that the basic
    definition of ‘corruption’ is essentially the abuse of
    public power for gain. It was counsel's submission that although the
    definition of ‘corruptly’ contained in s 32 of the Act
    was declared unconstitutional and struck down by the High Court in
    Teckla
    Nandjila
    Lameck and Another v President of the Republic of Namibia and
    Others,
    as
    yet

    unreported,
    (the
    Lameck
    matter) the offences in the Act were not affected and the word
    ‘corruptly’ used in those sections would bear its
    ordinary grammatical meaning. Counsel submitted that sufficient
    evidence had been adduced to prove all the necessary allegations
    required by s 43 (1) of the Act, upon which a reasonable court,
    acting carefully, may convict the two respondents on the first two
    main counts and the first respondent on the third count.








  1. Before the reasons
    granting the appellant leave to appeal were furnished, counsel for
    the first respondent argued with reference to the Lameck
    matter, that although the Court below did not have the
    benefit of knowing that the definition of ‘corruptly’
    would be declared unconstitutional, the Judge below applied her mind
    correctly as that Court's reasoning was premised on the legality
    principle in relation to the definition of ‘corruptly’
    in the Act. As such, so counsel argued, it could not be said that
    the Court below’s reasoning was incorrect or that it did not
    apply its mind properly. Counsel further contended that the decision
    to discharge does not bring appellant’s case to an end, as the
    respondents had not been discharged on the alternative counts. With
    the Court below's reasons having come to hand, counsel filed
    supplementary notes in which he argued, amongst other things, that
    now that the definition of the word 'corruptly' appearing in s 32 of
    the Act has been struck in the Lameck matter, and given
    further the importance of the meaning to be ascribed to that word as
    used in s 43 and other sections of the Act, this Court should give
    guidance on how the word 'corruptly' should be interpreted. This
    submission will be dealt with below. It remains to consider next
    arguments advanced on behalf of the second respondent.







  1. Counsel
    for the second respondent contended that not a single witness
    testified that the second respondent at any stage acted for himself
    and that on the available evidence the only inference to be drawn
    was that he acted on behalf of the first respondent to rent the
    vehicles. Thus, counsel submitted, the only conclusion that can be
    arrived at in the circumstances is that he acted as an agent as
    defined in s 32 of the Act
    .9
    Counsel developed the argument that s 32 read with s 35
    10
    of the Act, however, requires that for the agent to be guilty of an
    offence in terms of the Act, he or she must receive gratification as
    an inducement or reward from another person. In the submission of
    counsel
    ,
    no evidence was led to prove that the second respondent had received
    gratification in any form. Therefore, so counsel argued, the Court
    below’s decision to discharge the second respondent in respect
    of the first two main counts was correct. Counsel continued to
    contend that the second respondent was not charged with 'corruptly
    accepting gratification' in contravention of s 35 of the Act.
    Instead, the charges against him were based, as previously noted, on
    s 43(1) read with ss 32, 43(2), 43(3) and 46. Counsel submitted
    that, s 35 must be read with s 32 of the Act or the definition of
    ‘agent’ in s 32 would be superfluous. He argued
    furthermore that s 46
    (b)11
    of the Act must be interpreted strictly and since the section is
    allegedly too vague it cannot be applied and must be struck from the
    Act. We note, however, that the constitutionality of s 46
    (b)
    has not been challenged in these proceedings. We are therefore of
    the view that it is neither necessary nor appropriate to express any
    opinion on this aspect of counsel's submissions.








Scope and ambit of
consideration of appeal



  1. The
    approach regarding an appeal against the discharge of an accused
    person under s 174 of the Criminal Procedure Act is settled. In
    S
    v Teek

    2009 (1) NR 127 (SC) this Court held that a court of appeal may
    interfere with the exercise of discretion if the repository of the
    discretion acted mala fide or from ulterior motive or has failed to
    apply his or her mind.
    12
    Where there has been no allegation, as here, that the trial judge
    acted mala fide or from ulterior motive, this Court can only
    interfere with the exercise of the discretion to discharge the
    respondents if it can be found that the trial judge failed to apply
    her mind to the matter when she found that there was no evidence
    upon which a reasonable court could convict – and therefore
    discharged
    -
    the respondents on the principal counts.
    13
    The trial Court had clearly not applied its mind to the correct
    interpretation and application of the Act when it decided the s 174
    application for discharge on the basis of the common law crime of
    corruption. It was correct, however, to concede in its reasons
    granting the application for leave to appeal that its views based on
    the common law definition of 'corruption' were erroneous
    .
    Consequently, the trial Court was entirely justified in granting the
    applicant leave to appeal. Certain of the arguments advanced on
    behalf of the appellant relating to the justification for what was
    perceived to be an overreach of certain of the provisions of the Act
    were meritorious. It is clear that, in so far as the proscribed
    conduct falls within the sweep of the Act, it has done away with the
    previous common law elements of the crime of corruption and has
    heralded in a new dispensation in the definition, reach and scope of
    the offence of corruption. The offence is now broad in its reach and
    scope. This appears necessary because corruption may manifest itself
    in different shapes and forms. It is also notoriously difficult to
    prove, because it often does not take place in the full view of the
    public.








  1. The
    wide scope and ambit of the crime also appears to be international
    in nature. It demonstrates the international community's resolve
    that corruption is an invidious crime that
    ,
    if left unchecked
    ,
    can erode a country's gains in all spheres of the human endeavour.
    In the words of the sixth Preamble to the Africa Union Convention on
    Preventing and Combating Corruption which Namibia has ratified,
    State Parties were concerned about 'the negative effects of
    corruption on the political, economic, social and cultural stability
    of African States and it devastating effects on the economic and
    social development of the African peoples'
    .
    It has been acknowledged in the seventh Preamble that corruption
    'undermines accountability and transparency in the management of
    public affairs as well as socio-economic development on the
    continent'
    .
    Accordingly, in Article 5 of that Convention, State Parties
    undertook to adopt legislative and other measures that are required
    to establish as offences the wide-ranging acts mentioned in para 1
    of Article 4 of that Convention. Similarly, in the first Preamble of
    the United Nations Convention against Corruption which Namibia has
    also ratified, State Parties to that Convention expressed their
    concern '
    about the seriousness of problems and threats posed
    by corruption to the stability and security of societies,
    undermining the institutions and values of democracy, ethical values
    and justice and jeopardizing sustainable development and the rule of
    law'. Accordingly,
    paras 1 and 2 of Article 5 provide as follows:








'1. Each State Party shall, in
accordance with the fundamental principles of its legal system,
develop and implement or maintain effective, coordinated
anticorruption policies that promote the participation of society and
reflect the principles of the rule of law, proper management of
public affairs and public property, integrity, transparency and
accountability.







2. Each State Party shall endeavour to
establish and promote effective practices aimed at the prevention of
corruption.'








  1. The Lameck matter
    was decided after the Court below had delivered its judgment
    discharging the respondents on the main counts. We have been
    informed that that judgment has not been appealed against and in the
    current proceedings the State has expressly accepted that the
    decision of the High Court finding, that the definition of the word
    'corruptly' in the Act was overbroad, is correct. The Act being
    relatively new, the law in this field should be allowed to evolve.
    The Court below should be given amplitude to develop this important
    and nascent piece of legislation. It suffices for the purposes of
    this judgment to hold that the word ‘corruption', at its
    lowest threshold when used in the context of the public service,
    includes the abuse of a public office or position (including the
    powers and resources associated with it) for personal gain. The
    synonyms of 'corruptly' include 'immorally, wickedly, dissolutely
    and dishonestly'.









  1. The Act, in s 32,
    explicitly states that ‘gratification’ includes ‘any
    discount’ which the public officer in terms of s 43 - and more
    particularly s 43(1) - is alleged to have obtained. We are of the
    view that in respect of counts 1 and 2, the appellant has tendered
    sufficient evidence prima facie to establish that as the most senior
    administrative officials in the National Assembly responsible for
    signing documents necessary for the renting of cars to the
    institution for official use, the first and second respondents knew
    of the lower rates offered to Government by the rental company and
    that they acted together to obtain gratification (in the form of
    lower rates) for the first respondent. We are also satisfied that in
    respect of count 3, the evidence led at the close of the State case
    establishes, prima facie, that as a beneficiary of a car allowance
    who could use State vehicles only in certain circumscribed
    circumstances, the first respondent corruptly used office or
    position for gratification when he effectively allocated the State
    vehicle to himself for private use. In the view we take of the
    matter, the conduct of the two respondents, in the absence of
    credible evidence contradicting the evidence led by the State at the
    stage of their discharge amounted to acting 'corruptly' (according
    to the grammatical meaning of that word). We are satisfied that the
    appellant has established sufficient evidence upon which a
    reasonable court may convict the respondents for the contravention
    of s 43(1) of the Act. We emphasise, however, that the views we
    express on the evidence presented by the appellant are prima facie
    and are made within the confines of the evidence apparent from the
    record.









  1. The argument advanced on
    behalf of the second respondent that there was no evidence upon
    which the second respondent may be convicted on the first two main
    charges and that he merely acted as the agent of the first
    respondent, cannot, in our view be accepted in the light of the
    above findings.








  1. It was for these reasons
    that the following order was made:








'(a) The appeal succeeds.







(b) The order of the High
Court made in Case No. CC14/2008 on 12 August 2010 discharging the
first and second respondents in terms of s. 174 of the Criminal
Procedure Act, 1977 on the principal charges under counts 1, 2 and 3
is set aside and the following order is substituted:







The applications for the
discharge of the first and second accused on the principal charges
under counts 1 and 2 and of the first accused on the principal charge
under count 3 are refused.’







(c) The matter is
remitted to the High Court for further adjudication.'















________________________



SHIVUTE CJ















________________________



MARITZ JA















________________________



MAINGA JA



















APPEARANCES


















APPELLANT:










Mr D F Small


Instructed
by the Prosecutor-General



FIRST
RESPONDENT:








SECOND
RESPONDENT:






Mr
G H Oosthuizen (with him Mr G Narib)


Instructed
by Murorua & Associates






Mr
Z J Grobler


Instructed
by Grobler & Co











1
Definitions for Chapter 4 of the Act.





2
Which reads: 'For the purposes of subsection (1), proof that a
public officer in a public body has made a decision or taken action
in relation to any matter in which the public officer, or any
relative or associate of his or hers has an interest, whether
directly or indirectly, is, in the absence of evidence to the
contrary which raises reasonable doubt, sufficient evidence that the
public officer has corruptly used his or her office or position in
the public body in order to obtain a gratification.'




3
Definitions for 'relative' and 'associate'.




4
Penalties.




5
Car Scheme, Par 7.5.




6
Id. Par 9.1.




7
Par 1.




8
Section 174: Accused may be discharged at close of case for
prosecution



If, at the close of the
case for the prosecution at any trial, 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, it may return a verdict of not guilty.




9
Section 32: Definitions for this Chapter


'In
this Chapter, unless the context indicates otherwise-



"agent" means
a person employed by or acting for another in any capacity
whatsoever, and includes-


(a) a
trustee of an insolvent estate;


(b) the
assignee of an estate assigned for the benefit or with the consent
of creditors;



(c) the liquidator of a
company or other corporate body that is being wound up or dissolved;


(d) the
executor of the estate of a deceased person;



(e) the legal
representative of a minor or a person who is of unsound mind or
otherwise under legal disability;


(f) a
public officer or an officer serving in or under any public body;



(g) a trustee, an
administrator or a subcontractor and any person appointed as an
agent in terms of any law;


.
. .'




10
Section 35: 'Corruptly accepting gratification by or giving
gratification to agent



(1) An agent commits an
offence who, directly or indirectly, corruptly solicits or accepts
or agrees to accept from any person a gratification-


(a) as
an inducement to do or to omit doing anything;


(b) as
a reward for having done or having omitted to do anything,



in relation to the
affairs or business of the agent's principal.'




11
Conspiring with any other person to commit an offence under Chapter
4




12
Par 9




13
Id par 10