S vs Rooi (CR 3/2018) NAHCMD 12 (01 February 2018);

Group

Headnote and flynote
Flynote: 

Criminal law: Review matter – evidence during trial proved fraud instead of the preferred charge of theft on the second count. Conviction altered accordingly.

Headnote and Holding: 

The accused, a garage employee loaded drums sometimes containers on the GRN vehicle and filled them with diesel/petrol under the impression that the fuel was required in line with his official duties while that was not the case.

Held that the charges of theft is altered to fraud.

Full judgment

 

REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

REVIEW JUDGMENT

                                                                                                     Case no: CR 3/2018

In the matter between:

THE STATE

v

JOHANNES ROOI                                                                 ACCUSED

 

(HIGH COURT MAIN DIVISION REF. NO. 91/2018)

(MAGISTRATE SERIAL NO. 140/2017)

 

Neutral citation: S v Rooi (CR 3/2018) [2018] NAHCMD 12 (01 February 2018)

 

Coram:          SIBOLEKA J and SALIONGA AJ

Delivered:     01 February 2018

 

Flynote:         Criminal law: Review matter – evidence during trial proved fraud instead of the preferred charge of theft on the second count. Conviction altered accordingly.

Summary:     The accused, a garage employee loaded drums sometimes containers on the GRN vehicle and filled them with diesel/petrol under the impression that the fuel was required in line with his official duties while that was not the case.

Held that the charges of theft is altered to fraud.


ORDER


1.   The conviction on theft on the first count is confirmed.

2.   The conviction on theft on the second count is substituted with that of fraud.

3.   The sentence of N$ 4 000 or eight months imprisonment is confirmed.


REVIEW JUDGMENT


SIBOLEKA J (SALIONGA AJ concurring):

[1]        The accused appeared in the Magistrate’s Court, Keetmanshoop on the following charges:

Count 1: Theft

That the accused is guilty of the crime of Theft.

In that upon or between February and March 2016 and at or near Keetmanshoop in the district of Keetmanshoop the said accused did wrongfully, unlawfully and intentionally steal 1 x GRN Fuel Card the property or in the lawful possession of Daniel Timotheus Frederick.

List property                                               Value

______________________                       ____________

______________________                       ____________

______________________                       ____________

______________________                       ____________

Count 2: Theft

That the accused is guilty of the crime of Theft.

In that upon or between February and March 2016 and at or near Deo-Geo Investment Puma Service Station, Keetmanshoop in the district of Keetmanshoop the said accused did wrongfully, unlawfully and intentionally steal fuel the property or in the lawful possession of Deodat David Dirkse.

List of property stolen                                Value

Diesel                                                         N$ 4 108,30

Petrol                                                          N$    241,44

[2]        The accused pleaded not guilty on all counts and after trial he was convicted as charged. All counts were taken together for purposes of sentencing him to: N$ 4 000 or eight months imprisonment. However, the evidence of the prosecution on the matter credibly brought the following undisplaced facts to surface: That during the alleged period the accused, an employee of the Government Garage at Keetmanshoop took and used a fuel/petrol card of a government vehicle with the registration no. GRN 4714. He loaded drums/containers on the said vehicle, drove to the Deo-Geo Investment Puma Service Station in Keetmanshoop and filled petrol in the amount of N$ 241.44 and diesel in the amount of N$ 4,108.30 giving the impression that the said fuel would be used in pursued and or in line with his duties as a government employee while that was not the case. It is my considered view that the accused should have been convicted of fraud and not theft on the second count.

[3]        In light of the above the conviction of theft on the second count cannot be allowed to stand, while the sentence will not be tempered with.

[4]        In the result I make the following order:

1.         The conviction of theft on the first count is confirmed.

2.         The conviction of theft on the second count is substituted with that of fraud.

3.         The sentence of N$ 4,000 or eight (8) months imprisonment for both counts is confirmed.

 

 

                                                                                                                        _____________

  A M SIBOLEKA

Judge

 

                                                                                                                          ____________

                                                                                                                    J T SALIONGA

                Acting Judge

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