CACHALIA t/a YOUNUS CACHALIA WHOLESALERS I.449/94
ANDREAS JOSEPH JOHANNES t/a CHECKERS WHOLE-SALE
given at trial not in accordance with pleadings -such evidence only
admissible if pleadings are amended accordingly - circumstances under
which Court will allow amendment.
NO. I 449/94
THE HIGH COURT OF NAMIBIA
the matter, between YOUNUS
YOUNUS CACHALIA WHOLESALERS
JOSEPH JOHANNES t/a CHECKERS WHOLESALE & SUPERMARKET
plaintiff, who is described in the
before Court as doing business as a wholesaler from Potgietersrus in
the Republic of South Africa, issued summons against the defendant
for payment of the amount of N$194 090.63 being in respect of goods
sold and delivered, interest and costs.
defendant, who is described as a businessman doing business at
Oshakati, promptly entered appearance to defend the matter. This led
to an application for a summary judgment by the plaintiff which was
likewise opposed by the defendant. In an affidavit filed by the
defendant he denied being indebted to the plaintiff in the amount
claimed but admitted that he owed the plaintiff an amount of
568.55. Consequently summary judgment was granted in this amount and
in regard to the balance of the plaintiff's claim the matter
proceeded as an ordinary defended matter.
of very thorough Rule 37 discussions which resulted in a considerable
confinement of the disputes between the parties, it is not necessary
to analyse the pleadings extensively. As a result of the Rule 37
discussions plaintiff, at the start of the trial amended the amount
claimed to N$136 218.15 after also deducting the summary judgment
given in his favour in the amount of N$6 568.55.
his plea, defendant admitted that he bought goods from the plaintiff
in an amount of N$130 324.03. In respect of goods to the value of
N$51 303.90 which were not delivered to him, the defendant received a
credit note leaving a balance of N$79 027.30 which was fully paid by
him. This payment also included the summary judgment amount of N$6
568.55 which was since then paid. There is some discrepancy of N$7.00
in the calculations set out above but this was taken care of in the
Rule 3 7 agreement and admissions by the parties.
greater importance are certain further particulars supplied by the
plaintiff in terms of a request prepared by the defendant. I will
refer later on more fully to this issue.
documents placed before the Court it seems that the relationship
between the parties goes back to July, 1992.
parties are further agreed that all goods sold and delivered by the
plaintiff to the defendant up to the beginning of -November, 1992
were paid for by the defendant. This, so it seems, was sorted out by
the parties in the Rule 3 7 conference. Goods ordered by defendant
from plaintiff were so ordered in writing. The goods were thereafter
despatched by rail or post from Potgietersrus to Tsumeb and from
there they were transported by the railways by means of road carriers
to Oshakati where the goods were delivered at the business premises
of the defendant.
issues in regard to which there are disputes between the parties are
set out in the Rule 3 7 minutes which provide as follows:
The defendant admits that he placed all the orders for goods to be
sold and delivered relied upon by the plaintiff except orders nos.
0447 to 0452 dated 28 October, 1992, which orders the plaintiff must
. The parties are in agreement that only the following invoices are
in dispute in the sense that defendant requires proof that the items
specified on these invoices had been delivered.
3/11/92 3/11/92 3/11/92 3/11/92 16/2/93 16/2/93 10/9/93 10/9/93
N$28 N$50 N$17 N$27 N$17 N$ 9 N$ 5 N$ 5 N$
.49 496.13 629.57 695.86 048.37 362.80 974.61 093.30 295.60 191.52
plaintiff admits that the
full amount due to the
of the invoices for
July 1992 to
The parties are in agreement that the following credits were passed
in favour of the defendant and that the following payments were made
by the defendant and received by the plaintiff in respect of the
invoices covering the period 3 November 1992 to 18 October 1993:
It is recorded that the amount of N$6 568.55 in respect of which
summary judgment was granted against the defendant has already been
paid by the defendant to the plaintiff and that the plaintiff's
claim as set out in his declaration has been reduced by the said
minutes continued to set out certain agreed amendments to the
pleadings regarding the amount now claimed by the Plaintiff and to
which I have already referred. This agreement also addressed the
discrepancy of N$7.00 in the plea: of the defendant to which I have
parties, also by agreement, handed up a bundle of documents
containing the statement, written orders, invoices and other
documentation which are relevant to the disputes between the
parties. A statement, contained on p. 2 of the bundle, reflects all
the invoices, those in dispute and those not in dispute, as well as
payments effected by the defendant. This statement shows
a balance in favour of plaintiff of N$194 090.93 which is
also the amount originally claimed by the plaintiff. From this
amount must then be deducted a credit subsequently allowed by
plaintiff in an amount of N$51 303.90 which then leaves a balance of
N$142 786.73. From this amount must further be deducted the sum of
N$6 568.55 for which summary judgment was granted to the plaintiff
and which sum was in the meantime paid by the defendant. It is on
the basis of the foregoing that the amended balance of N$136 218.18
is now claimed by the plaintiff.
would be convenient at this stage to refer to an application to
amend particularly the further particulars previously furnished by
the plaintiff, and which application was made during the hearing of
the matter after the plaintiff, Mr Cachalia, had completed his
evidence and the matter was postponed for further continuation of
a request for further particulars dated the 14th April, 1994 and
addressed to the plaintiff's declaration, defendant in para. 1.1 of
his request, asked the plaintiff to give particulars in regard to
the contract of sale on which he relied. In his answer, dated 19
September, para. 1.1, plaintiff stated that he relied on various
oral agreements concluded between the parties between the period
October, 1992 to November, 1993 in terms whereof plaintiff sold and
delivered to the defendant clothes and shoes. In para. 1.3 of
defendant's request plaintiff was asked whether any goods were in
fact delivered to the defendant. The reply to this request was in
the affirmative. Then in paras. 1.6 and 1.7 of the request the
plaintiff was asked to state who on behalf of the plaintiff
delivered the said goods and who, on behalf of the defendant,
received such goods. The plaintiff's answer to para. 1.6 was that
the goods were delivered on his behalf by Transnet, Transnamib and
the postal services. In regard to para. 1.7 plaintiff stated that
the goods were received by defendant or employees in his employ. The
way in which the answers were couched in regard to paras. 1.6 and
1.7 in my opinion constitute the railways and the postal services as
the agents of the plaintiff. That being the case the plaintiff had
to prove that delivery occurred to the defendant or his employees at
when the plaintiff testified he stated that printed order forms
the term that goods ordered by a purchaser would be delivered F.O.R
at Potgietersrus, were signed by the defendant and that that was the
agreement between the parties. This evidence constituted in my
opinion the railways and postal services the agents of the defendant
so that plaintiff only needed to prove delivery of the goods to the
railways or postal services at Potgietersrus.
Geier, on behalf of the defendant, quite correctly objected to this
evidence. Mr Coetzee, on behalf of the plaintiff, then argued that
delivery was in dispute and that the plaintiff was consequently
entitled to lead evidence in that respect. After short argument the
Court ruled in favour of the plaintiff. The case then further
proceeded on the basis of the agreement as testified to by the
plaintiff and the plaintiff was also cross-examined on that basis.
the case was postponed I again went through the pleadings and then
came to the conclusion that the evidence given by the plaintiff in
regard to delivery was not canvassed in the pleadings and should not
have been admitted, at least not without amendment of the
a result of this conclusion I caused notice to be given to the
parties to inform them that at the continuation of the trial the
Court would require further arguments on the following two points,
the plaintiff's case is, on the pleadings, based on delivery
not, whether evidence in connection therewith would be admissible
without amendment of the pleadings.
the hearing started again on the 7th March, 1996, Mr Coetzee
delivered a notice of amendment wherein para. 1.6 was substituted
with a new paragraph which alleged that -
The goods were delivered free on rail, Potgietersrus or to the
postal authorities at Potgietersrus, the risk for loss in transit in
both instances being on the defendant."
this was later added that -
goods were so delivered by the plaintiff or employees in the employ
of the plaintiff."
1.7 was substituted with the following new paragraph -
The goods were received on behalf of the defendant by Spoornet, at
Potgietersrus, South Africa in respect of those consignments
forwarded by rail and by the postal authorities at Potgietersrus in
respect of the consignment forwarded by post."
plaintiff also applied to supplement his answer in para. 1.1 of the
particulars furnished by him by adding between the words
"agreements" and "concluded" the words:
"Alternatively agreements concluded partly in writing and
Geier opposed the application to amend and provided the Court with
helpful heads of arguments. After argument I allowed the amendment
subject to the plaintiff paying the wasted costs of the day and
further subject to the plaintiff being recalled for further
cross-examination on the issues raised in the amendments.
reasons for allowing the amendments and particularly the amendment
regarding F.O.R. delivery were that that would allow a proper
ventilation of the real issues between the parties so that justice
may be done between them. (See Trans
Drakensburg Bank (Under Judicial Management) v Combined Engineering
(Ptv) Ltd & Another.
1967(3) SA 632 (D & CWL) at p. 638). Also, because of my
earlier ruling, the issue was canvassed and cross-examination was
directed thereto by Mr Geier. Furthermore, from documentation placed
before the Court it was clear that in those instances where the
plaintiff's printed order forms were used and which were signed by
the defendant, such orders contained a F.O.R. delivery clause. It
was also clear from the evidence that the railage of goods
despatched by plaintiff to defendant were also paid by the
defendant. Because of these clear indications which were proved
other than by word of mouth of the plaintiff I was satisfied that
the amendments covered a genuine and real issue between the parties.
only possible prejudice which the defendant could in my opinion have
suffered as a result of the allowing of this amendment, was that Mr
Geier was perhaps not fully prepared at the time he cross-examined
the plaintiff on this issue. To exclude any possible prejudice in
this regard the amendment was allowed subject to the recalling of
the plaintiff. As a result of the amendments the matter stood down
from the 7th March to the 8th March. This was by agreement between
the matter continued on the 8th Mr Geier filed an amended plea and
the plaintiff again took the stand and was further cross-examined by
Mr Geier. The only regard in which the amended plea differed from
the original plea was that defendant denied the F.O.R. delivery term
and pleaded that it was an oral, alternatively an implied and
further alternatively a tacit term of the agreement between the
parties that delivery of the goods sold had to be effected by the
plaintiff at the business premises of the defendant.
only witnesses that testified were the plaintiff and the defendant.
Because of the Rule 37 admissions the Court is only called upon to
consider and decide three distinct orders and deliveries as
reflected in the invoices which were allegedly sent to the
defendant. In regard to the order set out on order forms 0447 to
0452 the Court must also decide whether this order was in fact
placed by the defendant. The goods ordered by these order forms were
reflected in invoice nos. 719, 720, 721, 722, 723, 724, 725 and 726.
to the evidence of the plaintiff he did business with various
clients in Namibia. This business was mostly done through a
representative who would visit the various clients and obtain
written orders from such clients. These orders were then sent to the
plaintiff's wholesale business in Potgietersrus where the orders
were made up and despatched to the client by rail or by post,
presumably depending on the bulk of the order. Goods despatched by
rail were packed in containers. According to the plaintiff goods
despatched by rail were delivered free on rail at Potgietersrus
Station. Clients were to pay for such railage. Transit insurance was
taken out by the plaintiff in respect of such goods for and on
behalf of the client and the client's account was then debited with
the cost of such insurance. This is clearly reflected in the various
invoices. See invoice nos. 719 to 726. The railage was similarly
debited to the account of the defendant. See invoice
no. 8 07 for an amount of R6 240.00.
goods containing this specific order of the defendant were packed in
three containers and despatched by rail to the defendant. See in
this regard items 22, 22/1 and 22/2 of the bundle of agreed
regard to the placing of the order the plaintiff testified that
after doing business through a representative he decided to come to
Namibia and to meet some of the clients. In regard to orders 0447 to
0452 and dated the 28 October, 1992 the plaintiff testified that he
paid a personal visit to the business of the defendant. He further
testified that he personally completed the order forms and that such
orders were placed by the defendant and were completed in the
presence of the defendant. He further said that because it was one
composite order he did not regard it necessary to obtain the
defendant's signature at the end of each page but only asked him to
sign on the last page of the order, which he then did. See order
form 0453. At this stage it is perhaps useful to state that
defendant admitted his signature on the order form 0453 and admitted
that he ordered the goods as set out in this order form.
further testified that after the goods were sent to defendant he
received a fax from Checkers Wholesaler, i.e. the business of the
defendant, stating that defendant had not received all the goods
ordered and setting out particulars of the goods so missing. (See in
this regard items 24 to 24/6) . On going through this
list of items plaintiff then identified which items were set out
in which invoice. These items were so identified by writing in the
invoice number on the defendant's fax indicating thereby which of
the lost goods appear on which invoice. From this it is clear that
goods appearing on all the invoices were affected. It now also
became clear that these goods were all packed in one of the three
containers despatched to the defendant. A claim for the missing
goods was instituted and defendant's account was credited with an
amount of R51 303.90.
defendant testified he stated that the F.O.R. condition on the
printed order forms was never explained to him. He admitted however
that it was explained to him that he would be liable to pay for the
insurance as well as the railage. It seems to me unlikely in the
circumstances that the defendant was not aware of this condition set
out on the order forms or what it meant. The business of the
defendant being in Oshakati and bearing in mind the merchandise in
which the defendant was dealing would, to some extent, have
necessitated that goods be ordered from places outside Oshakati and
had to be transported to the place of business of the defendant. It
furthermore seems to me highly unlikely that it was explained to
defendant that he was responsible for the insurance, which is one of
the conditions contained in the form, and that the other condition,
namely that the goods would be delivered F.O.R. at Potgietersrus,
was not also brought to his attention, more so because it was also
explained to him that he would be responsible to pay the railage.
The fact that he was
for the insurance clearly signifies that he also carried the risk of
any losses in transit which was brought about by the- agreement that
the goods would be delivered F.O.R. at Potgietersrus. This condition
was also set out directly above the signature of the defendant and
it could hardly have been missed by him.
Geier argued that the fact that the plaintiff claimed for the
missing goods and in one instance, although according to plaintiff's
evidence the risk of loss was on the defendant, paid for the box of
tissues which got lost, showed that the F.O.R. condition did not
form part of the agreement between the parties. That, so counsel
argued, was also the reason why the pleadings originally were not
based on this condition. The first part of the argument loses sight
of the fact that it was agreed between the parties that defendant
would pay for the insurance of the goods in transit. This was also
admitted by defendant. Defendant, on the one occasion when a claim
was instituted, also received the benefit of the claim because of
the credit note passed in his favour. It is therefore not possible
to draw from plaintiff's dealings of the matter, the inference
sought for by Mr Geier. Plaintiff also explained fully the way and
the reasons why he dealt with the matter in the way he did. I accept
such explanation. The plaintiff also explained why he, instead of
instituting a claim, paid for the box of tissues which got lost. He
explained that it would have cost him R2.00 to institute a claim for
R3.00, which was just not a business proposition. The third point
argued by Mr Geier is of greater importance. However, it seems
to me that what plaintiff wanted to convey to the Court when he gave
evidence, was that where the conditions under which he contracted
with a buyer were in writing and signed it should not really be
necessary for him to bring that to the attention of his legal
representative. The plaintiff, also under cross-examination, was
adamant that the conditions contained in the written order forms
were the conditions on which he contracted to sell and deliver goods
the circumstances I find, on a balance of probabilities that the
defendant contracted with the plaintiff to deliver the goods ordered
subject to the conditions set out in plaintiff's order form and that
his acceptance thereof was signified by him signing such documents.
in mind the admissions made by the defendant, when he gave evidence,
in regard to the disputed orders set out in paragraph 1 of the Rule
37 minutes, namely No. 0447 to 0452 which are reflected in invoices
719 to 726, it is not necessary to decide the issue of delivery. In
this regard the defendant, when giving evidence, admitted that he
received and accepted a credit in his favour, passed by the
plaintiff in an amount of N$51 303.90 in respect of goods lost in
transit. A reading of item 24 to 24/5, of the bundle of documents,
which emanated from the defendant, showed that he claimed for goods
which formed part of all the invoices executed as a result of the
disputed orders 0447 to 0452. This also included goods set out in
invoices 719, 720, 722, 724 and 726 which are now disputed.
(See para. 2 of the Rule 37 minutes) . This claim therefore
carried with it the admission that the goods, as set out in the
order forms, were in fact ordered and accepted and that in regard to
those goods not received a claim was now lodged. During his
cross-examination this was precisely what was testified to by the
defendant. The defendant therefore accepted that what was reflected
in the disputed invoices 719, 720, 722, 724 and 726 was delivered to
him and that, in respect of such goods reflected therein, what he
did not receive he put in a claim and was credited therefore.
mindful thereof that the defendant denied that the faxes set out in
items 24 to 24/6 was sent by him or anybody on his behalf. As these
documents, together with the one sent by plaintiff, item 25/1,
formed the basis on which the defendant's claim was calculated,
which calculation was accepted by him, I find that these documents,
24 to 24/6, were sent by him or somebody on his behalf. In the
circumstances defendant is therefore liable to pay the plaintiff the
amounts set out in invoices 719, 720, 722, 724 and 72 6.
not necessary for my conclusion above I must however also refer to
other inconsistencies in the evidence of the defendant regarding
this part of plaintiff's claim. It is so that the disputed order
consisted of seven separate pages and that each page provided for a
signature at the foot thereof. It is also so that the signature of
the defendant only appeared on the last page. How this came
about was explained by the plaintiff. He testified that at the time
when he took the order from the defendant he had already been' doing
business with the defendant for some time. As this was one order he
did not think it necessary for the defendant to sign each page and
only required him to sign the last page. Defendant however stated
that he did not sign the six previous pages because the plaintiff,
when the defendant, for example, ordered five items of a particular
merchandise the plaintiff would then write down 500. Bearing in mind
the evidence of the defendant and the fact that, when he put in his
claim, he seemingly did so without any objection, I have no
hesitation in accepting the version of the plaintiff.
second disputed claim concerns the goods reflected in invoices 1069
and 1070 dated the 16 February, 1993. The goods reflected in these
two invoices form part of a bigger order placed by the defendant on
the 9th and 10th February, 1993. See the bundle of documents, items
28 to 28/9. The goods so ordered are reflected in invoices dated the
16th February, 1993 and numbered consecutively from 1067 to 1073.
order forms, items 28 to 28/9 of the bundle, are not the usual
printed order forms of the plaintiff. Plaintiff testified that from
time to time his representatives ran out of printed forms and that
they then used other stationery to write up the orders. Consequently
the stationery so used did not contain the printed conditions
concerning the payment of insurance and that delivery would take
place F.O.R. at Potgietersrus. Plaintiff however testified
that all orders placed with him were subject to these conditions. It
was further pointed out that also in respect of these orders the
defendant paid the insurance and also the railage. However the
representative who took the order and who could testify whether it
was agreed that this order would also be subject to these conditions
was not called to testify.
denied in general that orders were subject to the F.O.R. condition.
It is so that defendant paid the insurance and railage. It may be
that because of the plaintiff's stance, that all orders to him were
subject to these conditions, accepted that it was so agreed between
his agent and the defendant and he therefor debited defendant with
these costs. Defendant accepted the fact that he was to pay for
these costs and further testified that he in fact paid therefore.
These facts alone, cannot in the light of defendant's denial and the
absence of any direct evidence, i.e. documentary evidence or oral
evidence to that effect by the person who took the order from
defendant, tip the scales in plaintiff's favour in regard to the
F.O.R. condition. In the result I have come to the conclusion that
the onus was on plaintiff to prove delivery at Oshakati of the goods
as reflected on invoices 1069 to 1070.
regard to these two invoices defendant testified that he had never
set eyes on invoices 1069 and 1070 until they were shown to him by
his legal representatives during his preparation for trial. He
furthermore testified that all the goods he received
corresponded to the five other invoices he received from
plaintiff, i.e. invoices 1067, 1068, 1071, 1072 and 1073. If this
were so then it would have been an- easy matter for the defendant to
show, by comparing the written order forms with the invoices, that
the goods reflected on invoices 1069 and 1070 were never ordered by
him. No such attempt was made by defendant notwithstanding evidence
by the plaintiff that the goods so ordered were in fact delivered.
this regard it is,- in my opinion, of significance that invoices
1069 and 1070 form part of one composite order and that, in regard
to the sequence of numbering they followed and fit into the
numbering of the other invoices which reflected this order. As it is
these invoices are not at the beginning or end of the batch where it
would have been easy to add them to the other invoices.
plaintiff also testified that defendant's order was packed into 12
cartons and sent to him by rail. Defendant at no stage informed him
that he did not receive all the goods ordered by him. Reference was
further made by the plaintiff to a consignment note, item 31,
whereby these goods were railed to the defendant. Furthermore a
delivery sheet of Transnamib, item 38(1), shows that 12 cartons of
goods were delivered to the defendant at Oshakati. It was
acknowledged by defendant that he in fact received these 12 cartons
with their contents. Defendant's claim that he never received
invoices 1069 and 1070 is also refuted by a letter written by one
Stuart Green, the bookkeeper of the defendant, dated 21 May,
1993, wherein an attempt was made
reconcile purchases and payments. In this document reference was
made to invoices numbered 1069 and 1070 and the amounts of these
invoices namely N$17 362.80 and N$9 974.61. See also pa. 2 of
the Rule 37 minutes.
all the evidence I am satisfied that the plaintiff proved on a
balance of probabilities that the goods reflected in invoices 1069
and 1070 were delivered to the plaintiff at Oshakati and that he is
therefore liable to pay therefore.
last group of disputed invoices are numbers 1654, 1655 and 1761. The
goods set out in invoices 1654 and 1655 were ordered per written
order forms nos. 2857 and 2858. The fact that the goods were ordered
by the defendant is not in dispute. Invoice 1761 only reflects the
railage costs concerning the goods ordered. The goods ordered were
reflected on the printed order forms of the plaintiff containing the
conditions that the goods were to be delivered F.O.R. Potgietersrus
and that transit insurance would be for the buyer's account. Both
order forms were signed by the defendant personally. In this regard
delivery of the goods ordered was subject to the F.O.R. condition
and consequently plaintiff was only required to prove that the goods
were delivered F.O.R. Potgietersrus.
when he testified stated that at the time when he ordered these
goods he was in arrears with his payments to the plaintiff. As a
result thereof he was informed by the plaintiff that the latter
would not execute the order. Consequently, so it was
testified by the defendant, his order was never carried out
and the goods were never delivered to him.
think that Mr Coetzee was correct when he submitted that bearing in
mind the evidence given by defendant, the actual allegations made by
defendant were that plaintiff fraudulently used his signed orders to
concoct a claim against him. It is however also clear, as was
admitted by defendant, that he never informed his legal
representatives of the actual reasons why he maintained that this
particular order was never executed.
according to the plaintiff, the order was executed and the goods
contained in three parcels. Plaintiff further testified that when a
consignment note is made out the numbers of the relevant invoices
are indicated on such note. Plaintiff further testified that items
33 and 33/1 constitute proof that these parcels were in fact sent to
defendant by rail. Item 33 is the account of Spoornet for the
railage of the parcels. This statement also reflected the invoice
numbers 1654 and 1655. From the above evidence it is in my opinion
clear that the reason given by the defendant as to why he did not
receive the goods ordered by him, cannot be correct. This reason, so
it seems to me, was also somewhat of an afterthought to attempt to
explain why he did not institute a claim or at least inform the
plaintiff that he did not receive the ordered goods. I am satisfied
that also in this regard, the plaintiff, in accordance with his
agreement with the defendant, delivered the goods ordered by the
defendant, when he gave evidence, relied mainly on the information
set out in the schedule attached to his affidavit when he opposed
the summary judgment proceedings. During cross-examination the
defendant frequently referred to this schedule to back up his
denials, or to prove the correctness of his testimony. However Mr
Coetzee amply demonstrated that the schedule was in many respects
incorrect and incomplete and that it could not be seen as a true
reflection of the various transactions between the parties.
the result I am satisfied that the plaintiff has proved his claim
against the defendant and that he is therefore entitled to judgment
shall therefore be judgment for the plaintiff in the amount of N$136
218.18 together with interest a tempore
and costs. In regard to the amendments allowed by the Court it was
ordered that the plaintiff pays the wasted costs thereof.
BEHALF OF THE PLAINTIFF: MR
G S COETZEE
BEHALF OF THE DEFENDANT: Instructed by:
H GEIER Gideon Kirsten
E A STROWITZKI B A BOCK
NO. 1 ACCUSED NO. 2
24, 30/09/1993; 28 + 30/03/1994;
7, 8, 18, 19, 20, 22, 25 - 29/04/1994;
11 + 13/5/1994;
17, 20 - 24, 27 - 30/06/1994;
2, 6, 8, 9, 12 - 15/12/1994;
- 8, 12 - 16/06/1995;
7 - 11, 15/08/1995;
8, 12 - 15/12/1995; 14/02/1996;
In view of the fact that this judgment is of considerable length, I
have divided it into sections as follows:
PLEA EXPLANATIONS OF THE ACCUSED
ISSUES WHICH WERE COMMON CAUSE AT THE END
WAS IN DISPUTE AT THE END OF THE TRIAL
LEGS OF THE STROWITZKI DEFENCE
OF THE ALLEGED SPECIAL AGREEMENT
NO. 2, MR B6CK HAVE KNOWLEDGE OF FALSENESS OF THE CLAIMS
ACCUSED NO. 1? SECTION
Eugen August Strowitzki, a 3 8 year old male person of German
Albert Bock, a 41 year old male of Namibian
accused will hereinafter for the sake of convenience, be referred to
respectively as Strowitzki and Bock.
indictment put to accused but as amended subsequently, reads that
accused are guilty of the crimes of:
that, upon or about or between 16th August, 1991 and 3 0th April,
1992 and at or near Windhoek in the district of Windhoek the said
accused did wrongfully, unlawfully, falsely and with intent to
defraud give out and pretend to the Government of the Republic of
Namibia (the State), the Ministry of Finance (Department of State
Revenue and/or Directorate of Customs and Excise) , and/or Standard
Bank Limited that -
persons and/or businesses set out in column 1 of the Schedule were
entitled to submit claims for the refund of excise duty and fuel
persons and/or businesses in fact submitted claims for such
persons and/or businesses were entitled to be refunded for the
amounts set out in column 2 of the Schedule; and/or
1 was entitled to receive and/or deposit the cheques issued for
such refunds in his bank account and thereafter was entitled to the
funds generated by such deposits, and did then and there by means
of the said false pretences induce the Government of the Republic
of Namibia (the State), the Ministry of Finance (Department of
State Revenue and/or Directorate of Customs and Excise) and/or
Standard Bank Limited to their actual or potential loss and
prejudice to -
the claims as valid claims;
issue cheques to the persons and/or businesses in column 1 of the
Schedule for the amounts set out in column 2 of the Schedule and/or
accept that accused 1 was entitled to deposit the said cheques in
this bank account and therefor was entitled to the funds generated
by the said deposits.
in truth and in fact the accused when they so gave out and pretended
as aforesaid well knew that the claims were false and that they were
not entitled to the cheques and thus the accused did commit the
crime of fraud.
CHARGES TO CHARGES 1-13
that, upon or about or between 16th August, 1991 and 3 0th April,
1992 and at or near Windhoek in the district of Windhoek the accused
did wrongfully and unlawfully steal the amounts set out in column 2
of the Schedule the property of or in the lawful possession of the
Government of the Republic of Namibia (the State), the Ministry of
Finance (Department of State Revenue and/or Directorate of Customs
terms of section 144(3)
Criminal Procedure Act, 51 of 1977, elaborates on the State case as
users of diesel fuel in Namibia qualify for a rebate of 18 cents per
litre of diesel bought. If a bulk supplier of fuel sells diesel to
such a user for the normal price less the 18 cents per litre, or if
such a user buys diesel from a supplier without the 18 cents being
deducted, they may
claim the rebate from
Ministry of Finance of the Government of the Republic of Namibia.
The Department of State Revenue and since July 1991,
Directorate of Customs and Excise, receives, processes,
the period 16 August 1991
April 1992 Accused
1 submitted 130
false claims for the refund of excise duty and fuel levy. This
by using the names of the persons and businesses set out in Column 1
of the Schedule. Accused
in charge of the office dealing with these claims and approved the
cheques with a total value of R2 461 958.60 were issued.
amount of each separate cheque is set out in Column 2 of the
Schedule next to the relevant name used by accused 1 when submitting
1 deposited all
these cheques except those mentioned in charges
41, 48, 50, 55, 63, 67, 80, 96, 105, 107, 116, 120 and 130 in his
personal bank account. The funds so generated were inter
by the accused to finance
partnership between them, to invest for their own account and to buy
list of witnesses attached to the summary includes names of all the
representatives of firms and individual whose names the alleged
fraudulent claims for diesel refunds, were submitted.
indictment was supplemented before plea with exH
for further particulars. The further particulars and copies of
relevant documents on which
State intended to rely, were provided to both accused before plea.
accused pleaded not guilty to all the charges.
State was represented initially
subsequently by Mr Small. Accused no. 1, Strowitzki, was represented
by Mr Geier, on instructions of the Directorate of Legal Aid which
that the Namibian Government financed his defence. Accused no. 2,
Bock, was represented by Mr Botes.
B: THE PLEA EXPLANATIONS OF THE ACCUSED:
Strowitzki's original plea explanation dated 15th
April, 1994 reads as follows:
I am the abovementioned Accused No 1 in this matter. I have read the
charge sheet which
explained to me and I accordingly
against me fully.
not guilty to these charges.
basis of my defence is as follows:
Subject to what is set out herein below, I admit that my
with number 042692911 with Standard Bank, Ausspannplatz,
Windhoek was credited with the amounts set out in column 2 of
the schedule to the charge
with the exceptions of the amounts referred to in the schedule
under numbers 13, 37, 41, 48, 50, 55, 63, 67, 80, 96,
105, 107, 116, 120 and 130 as well as the
reflected in those charges.
also admit that some of the funds which were paid into my account
were used in order to procure the investments with Syfrets, Cape
Town, the Board of Executors, Cape Town, the Board of Executors,
Johannesburg, the Board of Executors, Durban and the Board of
also admit that I bought a townhouse in Klein Windhoek from F C
Brand as well as a townhouse in Walvis Bay.
000,00 was put as my contribution into a partnership named National
Car Rental/Autovermietung which existed between my son and myself.
do aver however that I was entitled to receive the payments set out
in the schedule annexed to the charge sheet as a result of the
following agreement which I had with the Government of Namibia:
the period June/July 1991 I entered into an agreement with a
representative of the Government of Namibia.
said agreement was to the effect that I would have to supply
foreign currency to the Government of Namibia which currency would
then have to be deposited into designated bank accounts overseas to
be at the disposal of the Government.
would have to supply the Government with either German Marks and/or
Swiss Franks at an agreed exchange rate of approximately three Rand
for one German Mark and/or Swiss Frank.
undertook to channel the rand equivalent in German Mark or Swiss
Frank as worked out with reference to this exchange rate into
designated banking accounts after South African Rands had been
deposited into my banking account and once the relevant deposits
had been cleared.
accordance with this agreement, monies set out in
the schedule to the charge sheet were deposited into
my banking account.
accordance with my obligations I then from time to time arranged
that the relevant amounts of foreign currency-would be transferred
into the said designated accounts overseas.
believed at all times that my actions were legal and in terms of a
contract which I had entered into with the Government of Namibia.
accordingly deny that when I acted as aforesaid, I was acting:
the intent to defraud;
a misrepresentation; which caused prejudice.
reference to the alternative charge of
theft, I wish to submit
respectfully that by
the same token I did not have the intent
steal when I dealt with the monies so coming
possession. I did not believe that
such contrectatio was
29th April, 1994, accused no. 1 supplemented his explanation of
plea with an extensive list of admissions relating to the receipt
and conversion of the Government cheques.
his various explanations of plea amounted to the following:
admitted that he had received the Government cheques issued for fuel
levy refunds and paid these, with a few exceptions, into his banking
accounts and converted the proceeds to his own use. He however
denied that he had submitted any of the alleged false claims. In
general terms he stated that the cheques he received were due to him
because of an official secret agreement he had
set out supra.
original plea explanation dated 22nd Ap 1994 reads as follows:
am Accused No. 2 in this matter.
am charged with 13 0 counts of fraud, alternatively theft.
have pleaded not-guilty to all the said charges against me.
however in terms of Section 220 of the Criminal Procedure Act, Act
51 of 1977, wish to place the following admission on record, to
I admit that I during the relevant period as alleged in the charge
sheet was employed by the Ministry of Finance in the Customs and
Excise section as a Senior Customs and Excise Officer.
however wish to state that during the relevant period as set out in
the charge sheet, I conducted my task in respect of my employment to
the best of my ability and at all times bona
therefore deny that I perpetrated any fraudulent act as alleged in
the charge sheet or any theft of money during such period.
accordingly deny any and all of the wrongful and unlawful acts
alleged in both the main count and alternative count."
Bock's additional plea explanation dated 28th April,
1994 reads as follows:
am Accused No. 2 in this matter.
already have pleaded not-guilty to all the charges alleged against
amplification of my written statement in terms of Section 115 of the
Criminal Procedure Act, Act 51 of 1977, as amended, and as a direct
result of further documentation supplied by the State, I wish to
enter the following further formal admissions in terms of Section
220 of the Criminal Procedure Act, Act 51 of 1977, to wit:
admit that the original claim forms contained in the further
particulars supplied by the State as Annexures "A 1.1" to
"A 13 0.1" have been received by the Department of
Finance for processing during the period alleged in the charge
admit that I, during the processing of
the said claims, initialled the original claim
forms referred to in Annexure "A" annexed hereto.
also admit that I checked the claims referred to in Annexure "B"
and signed same as having been checked by myself.
furthermore admit that the cheques contained in the new further
particulars supplied by the State were issued by the Department of
Finance in respect of the respective claims."
In sum, accused no. 2's defence can be summarised as follows:
no. 2 received the claims, and initialled it as having been received
and checked by him in most of the claims relevant to the charge. He
authorized the cheques. He however denied that he knew the claims
submitted were false and insisted that he acted bona
in all cases. He declined to say however from whom he received the
applications and to whom the cheques were delivered.
C: THE ISSUES WHICH WERE COMMON CAUSE AT THE END OF
affecting both accused:
All the claims submitted in respect of counts 1 -13 0 were
purported firms and individuals did not authorize Strowitzki or any
other person to submit such claims on their behalf;
as their purported signatures appeared on some written authorities,
these are forgeries in most, if not all cases;
Strowitzki nor Bock nor any other person had any authority
to pay the
cheques purporting to the diesel levy refunds, into the banking
accounts of Strowitzki and to be converted by Strowitzki or Bock to
their own use;
the particulars of alleged purchases and use of diesel fuel filed in
support of the claims were false;
no. 1 was never a registered diesel supplier or user;
Ministry suffered prejudice in the amount of N$2 461 958.60 by
issuing cheques for diesel levy refunds in regard to these false
actual prejudice was N$2 319 408.19 and the potential prejudice
N$142 550.41. The potential prejudice was in respect of cheques
issued but not yet paid into Strowitzki's banking account or where
it was paid in but payment was stopped by the Government.
relating; more particularly to Strowitzki's defence:
The agreement alleged by Strowitzki to have been entered into with
one Schmidt on behalf of the Namibian Government was an oral
agreement and at no stage reduced to writing.
alleged agreement did not provide that Strowitzki would submit
claims for diesel levy-refunds to the Government of Namibia.
was never part of the agreement that Strowitzki would submit false
claims to obtain payment in Namibia.
did not call Schmidt as a witness and could at no stage provide any
particulars to make it possible to trace Schmidt.
did not know whether the said Schmidt held any post in the
name Schmidt was not disclosed to the police, the State or any
other person before the trial; the name was not mentioned in the
application by Strowitzki before pleading, for an order for
"permanently quashing and permanently staying the criminal
proceedings" against the accused on the ground that the
accused could not have a fair trial; the name of Schmidt
was not mentioned in any of the written plea explanations by
Strowitzki. This notwithstanding the fact that Strowitzki as well
as Bock mentioned other
names to the investigating officer and the fact that the Court in
the aforesaid pre-trial constitutional application, during
argument as well as in the course of the judgment, pointed out the
vagueness of -the alleged agreement, and in particular, the defect
that Strowitzki could not supply the name or names of the person or
persons who negotiated with him on behalf of the Government and
such person's position or status in the Government hierarchy. In
Strowitzki's founding affidavit in par. 61, Strowitzki said under
informed counsel that I could not at
this stage identify
relevant government official with whom
the said agreement
had been concluded
and that, as a result of this, the
important way of proving this agreement
material found overseas
(My emphasis added).
State v Strowitzki & Bock,
1995(1) BCLR, 12 (Nm) at 38 G - 39 H.
name Schmidt was mentioned for the first time later in Strowitzki's
evidence after one of his diaries was produced in Court and the name
"Schmidt" appeared in that diary, but without any
indication of the context and connotation.
D: WHAT WAS IN DISPUTE AT THE END OF THE TRIAL:
regard to Strowitzki, accused no. 1:
Whether or not he completed and/or submitted the aforesaid false
claims and false authorities.
or not the agreement alleged by Strowitzki was ever entered into
and if so, its effect on the mens
so-called constitutional application based on the allegation that
the accused did not have a fair trial.
respect to Bock, accused no. 2:
only issue in dispute between the State and Bock is whether or not
Bock had knowledge of the falsity of the claims. Bock's stand in his
evidence was that he received the applications from Strowitzki and
in several cases personally handed the cheques to Strowitzki,
including other documents such as a new application form. In the
light of his great respect for Strowitzki, he never suspected
anything wrong with the claims and acted bona
E: THE THREE LEGS OF THE STROWITZKI DEFENCE:
or not Strowitzki submitted the aforesaid false claims:
The investigating officer, Van Vuuren, testified that he found
amongst the documents in Strowitzki's filing system, inter
photocopies of the claims submitted without the official part
completed; applications in some
such as Autoland, to register as supplier of diesel and notification
to Autoland of registration; the relevant cheque counterfoils
indicating clearly to whom the cheques were made payable and that
those cheques were in respect of fuel levy refunds; the "index"
in the index book of accused, Exhibit "F", found in his
filing system in which he had entries corresponding to
purported claimants, e.g.
Strowitzki did not deny in his evidence that the
index book was
his and the entries made by him or
on his behalf. He could not at
any stage give any
satisfactory explanation for the
is clear that Strowitzki was
in recording his activities in his diary Exhibit "DF". The
entries in his diary also provided damning evidence of the fact that
he was the one who prepared and submitted the claims. So e.g. in
regard to the purported claimant Ebrecht, the diary contains an
entry on 23rd August, 1991
A Ebrecht" and "Preparation application diesel oil".
On the same date the first claim under the name Ebrecht was
submitted and forms the substance of count 28.
nevertheless persisted in his denial
the claims for diesel levy refunds were made by him or on his
behalf. He vaguely suggested that some person in his office could
have submitted the claims without his knowledge.
witness S M Jones was employed by Strowitzki's company at the office
of National Car Rental and was the senior in the office for the two
months preceding the arrest of Strowitzki. She has knowledge of his
handwriting. She testified without any contradiction that neither
she nor any of the juniors in the office had any knowledge of the
claims submitted or any cheques received in regard thereto. She also
identified in cross-examination the signature of Dr Strowitzki on
the original claim forms and his handwriting on many of them,
including his handwriting on many of the annexures to the claims in
the case of the claims purporting to be by the diesel suppliers.
Although she was no handwriting expert, her experience of
Strowitzki's handwriting made her evidence and opinions relevant and
admissible, at least in so far as she averred that the aforesaid
signatures and handwriting were similar
to that of
also testified about the
and filing at Strowitzki's flat where only Strowitzki and his 14
year old son, Burkhardt resided and where Strowitzki kept his filing
witness also made a good impression on the Court. She also had no
motive to incriminate Strowitzki and to give evidence prejudicial to
far as the signature and handwriting is concerned the Court had the
opportunity in the course of this long trial, to see and compare
almost on a daily basis, the signature and handwriting of
Strowitzki on documents admitted to have been signed by him and
those aforesaid which he disputed or evaded. The Court's own
impression is that the admitted signatures and handwriting are
extremely similar, if not identical, to those alleged by the State
to have been signed, filled in and prepared by Strowitzki.
evidence of the co-accused Bock was also to the effect that the
claims were submitted by Strowitzki. Although Bock appeared to be a
liar in many respects, there seems to be no motive discernable why
he would in this respect, tell lies to incriminate Strowitzki,
particularly in view of the fact that up to a late stage in
the trial, the defence refrained from incriminating Strowitzki,
possibly because it was hoped that Strowitzki would reciprocate.
is also no reason whatever to doubt the evidence of Van Vuuren in
regard to the documents found in the files of Strowitzki.
the circumstances of this case, there is no indication of any
person other than Strowitzki, who could have submitted the claims
or at least the vast majority of them. The probabilities clearly
point to Strowitzki as the person who not only received, banked and
converted the Government cheques to his use, but who submitted all
the claims in regard thereto.
himself was a hopeless witness who made a bad impression
throughout. He was evasive and contradicted himself repeatedly. In
the face of the most damming evidence consisting of documentary
proof, he persisted unashamedly with his lies.
follows that his bare
denial without any corroboration from any source and in the face of
the overwhelming mass of viva
and real evidence and the probabilities, must be rejected as false
beyond any doubt.
agree with the argument of Mr Small that the defence of the alleged
prior agreement with the Government, cannot avail the accused even
if there was such agreement because the accused admitted and had to
admit that the agreement did not provide for false claims to be
submitted by him or any other person to the Ministry of Finance for
diesel levy refunds.
must also be noted that it follows from the aforesaid analysis that
the bank was never a party to the alleged agreement. Consequently
the bank was also defrauded by Strowitzki as alleged in the
indictment, in that the bank was led to believe by the
misrepresentations of Strowitzki inherent
in his course of conduct, that Strowitzki was entitled to deposit
the said cheques in his bank account and therefore was entitled to
the funds generated by the said deposits, whereas in truth and in
fact the accused when he so gave out and pretended, knew that he
was not entitled to the cheques.
follows from the above that Strowitzki must be convicted on all
counts, unless there is substance in his so-called "constitutional
In the circumstances it deal with the defence of or to
deal with it nevertheless deal with possible because it
not strictly necessary to
the alleged special agreement
much detail. I
defence as briefly as also relevant to Strowitzki's
defence and may also be relevant to sentence, should Strowitzki be
F; THE DEFENCE OF THE ALLEGED SPECIAL AGREEMENT:
finding in SECTION
with the preceding analysis and facts not in dispute, are already
strong indications that the alleged special agreement is a fiction
of the imagination of a compulsive liar.
question arises: Why would Strowitzki go to all the trouble of an
elaborate system of the submission of false claims, when there is an
agreement not providing for it and where the money received from the
Government, is received in response to such fabricated claims with
no indication of any nexus to an underlying agreement with the
Government. Why would Bock, who processed the claims not know about
such agreement? Why would Strowitzki not tell Bock, his close friend
and associate anything about the agreement? Why would Strowitzki
falsely deny the submission of the said claims by him?
I have already indicated supra,
that the key person in the defence, the so-called Mr Schmidt, was
only brought into the picture at a late stage when the defence must
have realised, after an indication from the Court already in the
course of the first so-called constitutional application, that it is
difficult to believe that Strowitzki cannot give the name,
status and particulars of the person with whom he entered into
an important contract where millions would be
could also be no excuse of
because of the lapse of time because this person, if it was not a
fictitious name, would have been prominent in the mind of
Strowitzki, throughout the period of implementation and during the
period following upon the arrest. It is also strange that such an
agreement, if bona
was not in writing and that no trace or reference to an agreement
could be found in any of the documents of the accused, including his
index, his diary, his cash book and his filing system.
could also not produce any documentation or witnesses to
corroborate him. Strowitzki for a considerable period could not
even identify the bank or banks or other financial institutions of
which he allegedly made use when repaying the Namibian Government
or the principals in the scheme. Correspondence by him or his
counsel with some of the banks and institutions allegedly involved,
met with negative replies in the sense that they had no knowledge
of any fact supporting Strowitzki's story.
is also of some relevance to trace the development of this defence
from arrest to the end of the trial.
Both accused appeared in Court on 16th April, 1992,
shortly after their arrest, to apply for bail. They were
then represented by the same
legal practitioner, namely Mr Vaatz.
Mr Vaatz is
an experienced lawyer. Both accused at that
under oath pledged their cooperation in
their testimony the
officer van Vuuren testified in support of the State's opposition to
bail. Van Vuuren set out the substance of the alleged crimes
allegedly committed by the accused. On behalf of the defence, Mr
Vaatz in cross-examination stated:
as an agent for farmers and service stations to collect this refund
levy, if I may call it that.
The 0.18 cents per litre and if surely, if you work for the
know that it is general commercial practice that sometimes you
employ other people to do a job for you, even so far as collecting
their evidence in this Court the accused did not deny that they had
given such instructions to their attorney but tried to avoid the
issue by claiming that they could not remember.
reply Van Vuuren indicated
that it had already been established in the case of Autoland.
one of the alleged service station claimants for refunds, that the
claim was false and that Strowitzki was not
appointed as agent by Autoland.
is also of importance to keep in mind that civil proceedings
were instituted against
and Bock in which the State case and evidence was set out in
considerable detail and in which it was made clear that Strowitzki
did not act as agent for those in whose names the false claims were
submitted. These proceedings were not defended by Strowitzki or Bock
even though, as this Court found in its judgment in the first
constitutional application, the accused had due notice of the
application by the state. The first proceeding was for an interdict
to stop the accused from withdrawing money from their bank accounts
and to stop them from dealing with their assets pending an action
for the repayment of the State monies which were paid into
Strowitzki's accounts from where same amounts were withdrawn and
invested in certain assets. The second proceeding was an action for
repayment of the monies illegally obtained and in respect of which
default judgment was obtained and execution levelled. The order for
attachment of the assets was already made in June, 1993. These civil
proceedings were instituted in 1992 soon after the arrest of the
must have been abundantly clear to both accused already in
September, 1992 that there were no prospects at all for a defence
that Strowitzki submitted the claims as agent for the purported
accused knew at an early stage after- their arrest that the police
had confiscated all or most of -Strowitzki' s filing system,
including the part removed by Strowitzki's son Burkhardt to a cellar
of a certain Mr Kirch, the father of Ms Jones. The accused must then
already have realised that these files, together with the bank
statements and other documents obtained from the offices of the
Directorate of Customs and Excise provided strong evidence of their
in addition they were confronted with statements under oath by van
Vuuren and the purported claimants, to the effect that the claims
were totally false and that Strowitzki was never authorised by them
to submit the claims, they must finally have
was doomed to failure.
was then that their fertile imaginations probably gave birth to the
defence of a special agreement.
reason why Brandt was selected as a target to incriminate, was
probably because he was in fact known to Strowitzki and even
befriended by Strowitzki and he was the attorney who on behalf of
the State, instructed the institution of the civil proceedings which
deprived Strowitzki of his funds and assets.
accused, particularly Strowitzki, probably felt betrayed by Brandt
and he may have had thoughts of vengeance against Brandt.
Furthermore Brandt was a reality not a fiction and because of the
friendly ties Strowitzki had with Brandt, it was easy for Strowitzki
to turn their innocent contacts into consultations on the special
on the other hand was the head of the Ministry of Finance before he
resigned. His resignation probably gave the accused the idea that
the said resignation would make their story that he was the
principal in an underhand and illegal deal, more plausible.
Strowitzki attempted to get van Vuuren to agree on arranging to
withdraw all the charges against him in return for information for a
prosecution against Dr Otto Herrigel, a former Namibian Minister of
Finance and against Dr Christiaan Brandt, then the Government
Attorney. Strowitzki in this proposed agreement would give all
cooperation and would assist van Vuuren, including the use of his
connections and contacts in Europe. One of the proposed terms were
that Strowitzki should have "all
freedom of movement for the necessary actions."
must be noted here that the only names
in this document by Strowitzki are those
of Dr Herrigel and Dr
Brandt. There was no
mention of "Schmidt". Furthermore
was on information and sources allegedly in
and the need to conduct the major, if not
investigation in Europe. There was no
suggestion whatever that
Strowitzki had any proof
in Namibia, e.g. anything contained in
system, or in his diary or in any other document
also no indication whatever that a person by
the name of Schmidt
was supposed to be in Namibia.
There was also no mention of the
for fuel levy refunds submitted by him.
name and role was also absent from this
omission was probably a
attempt to lead the investigation away from Bock because of the
risk, realised by Strowitzki, in opening that can of worms or
because he was already contemplating obtaining freedom for himself
and double-crossing Bock or because of both such considerations.
is clear from Bock's evidence under cross-examination by Mr Geier,
for Strowitzki, that Bock insisted on Strowitzki making a full
statement and even showed some aggression against Strowitzki when a
satisfactory statement by Strowitzki was not forthcoming. When Bock
realised that van Vuuren was not taken in by Strowitzki and refused
to enter into the proposed written agreement, he struck out on his
by the time of Strowitzki's aforesaid pre-plea constitutional
application, up to and including his subsequent plea explanation,
Strowitzki was unable to give the name of any
with whom he allegedly entered into the special agreement.
was only much later in the trial as pointed out supra,
that "Schmidt" was named as the key figure. It seems that
when however it became clear to all concerned, including Strowitzki
and his counsel, that the attempt at the Schmidt version was doomed
to disaster, Strowitzki resurrected at least the version that
was the key contact and the go-between between the Government
and/or Minister Herrigel, and himself. As time went on and after
Herrigel had testified, the incrimination of Brandt grew in
severity in the Strowitzki defence. It seems that the shifting of
the emphasis to Brandt was because there was at least proof that
Brandt had befriended Strowitzki, had even sold a flat to him and
at one stage lived in the proximity of Strowitzki's flat. By
drawing in Brandt, the defence hoped to make their story more
plausible. This was clearly a last straw grasped at by the defence.
course Herrigel as well as Brandt in their
denied every allegation of Strowitzki regarding a special agreement.
It is also important here to note that it was never put to Herrigel
when he testified that he in fact had anything to do with Strowitzki
or had anything to do with the alleged special agreement. Dr
Herrigel also pointed out that if the Government needed foreign
exchange, it would certainly not approach a newcomer to Namibia and
an unknown, to provide foreign currency for the Government. The
defence at no stage during the trial contended that Dr Herrigel was
involved in such a scheme.
The reasons for the fundamental changes in Strowitzki's particulars
and emphasis in regard to the alleged special agreement, can be
better understood in the light of the fundamental changes in the
defences of co-accused Bock with whom Strowitzki certainly
coordinated efforts, amounting to a conspiracy to mislead the police
and Court, from the time of the arrest at least up to 1st April,
both accused during their first appearance for bail on 16th April,
1992, raised the defence that Strowitzki was an
of those who claimed and claimed on their behalf.
6th August, 1992 Bock signed a plea explanation in which he claimed
to have performed his duties bona
when he received claims and paid out the claims.
On -4th September, 1992 Bock however for the first time alleged that
he acted on instruction from Dr Herrigel. Bock admitted at the
beginning of the trial and throughout the trial that all these
allegations were lies told by him on the instigation of Strowitzki
and concocted from information supplied by Strowitzki in prison. He
also admitted that he knew of the falsity of the allegations already
at the time when he made the allegations. This Bock statement
corresponds to some extent to the allegations made by implication in
Strowitzki's proposed written agreement made before 11th September,
1992, i.e. more or less within the same time frame as the aforesaid
Bock statement of 4th September, 1992.
statement however contained specific allegations about Dr Herrigel's
alleged instructions to him. It contained at least nineteen lies of
the gravest nature imaginable. The best is to quote the statement in
full. This statement was made after Warrant Officer van Vuuren had
warned Bock that he must be cautious of what he said because it was
a serious matter and could be used as evidence in a Court of law.
The statement reads:
Bernd Albert Bock
in English under oath
am an adult White male, ID no. 510125 01 0025 7, born
on 25/01/51: Born at Okaputa
at Freyn Str. 3
am informed by D.W.O. (1) WF
Janse van Vuuren that he is a Peace Officer and that he is
investigating an alleged offence of Fraud involving a amount of ±
R2 461 000. That he wants to know anything which I can tell him
about it and that I must be cautious of what I say because it is a
is alleged that I support Dr R E A Strowitzki in submitting
fraudulent diesel refund levies at the Ministry of Finance of the
Government of Namibia since August 1991 until April 1992.
am warned that I am not obligant to answer any questions and/or make
any statement but what I may say will be written and may be used at
a later date as evidence in a Court of Law. I am sober and by my
full sense and understand the contents hereof.
DATE: 92/09/04 SIGNATURE
answer to the above read out to me
and signed by me, I wish to
following:- As per attached annexure
written in my
own handwriting "
working as Senior Customs & Excise officer in the
'fuel levy refund' (diesel) section, I got
verbal information by the Minister of Finance, Dr Otto Herrigel,
to check and pay out all claims from Dr R E A Strowitzki, who was
appointed by the Minister as agent. Dr 0 Herrigel was to my
experience also acting as money distributor for the
present Government or/and Government Personnel. The
Personnel that worked for/with/under me all claims
and in order. Although it did seem tricky to me with the verbal
orders that I received from Dr 0 Herrigel, I did not know or suspect
anyway of dark money transaction in it, especially not Dr 0 Herrigel
and/or Dr Strowitzki or any other person. On or about the end of
September 1991 I was at Dr Strowitzki's house and then Mr Christiaan
Brand did come to visit Dr Strowitzki and it was at about 21:30
hours, when I did question Mr Brand about the verbal orders that I
did get from the then Minister of Finance, but then in the presence
of Dr Strowitzki he said that if the Minister of Finance did give
the orders (verbal) it is in order.
I was put in jail as awaiting trial prisoner the following
information did I gather. Dr 0 Herrigel had a close friend from
Namibia to talk to all his clients, also Dr Strowitzki and he drove
the official vehicle of the Min. of Finance. This close friend of Dr
Herrigel did arrange for the payment of German Mark in either
Cologne or Antwerp at an exchange rate of R3,0 0 to DM 1,0 0 for the
transport by a person in a red 190E Mercedes Benz vehicle from the
province of Heidelberg, and the exchange rate was at that moment
about Rl,65 for DM1,00. It was then transported by the studyfriend
of Dr O Herrigel coming from the Heidelberg district to the group of
Banks, also known as City Corporation GmbH in Zurich and payed into
an account unknown to me. As far as my information goes it was an
account of Dr Herrigel and two others. Dr Herrigel was to my
knowledge asked to resign as Min. of Finance due to the fact that he
took a greater amount of money due to him in Europe than that he
should have received.
then Minister of Finance also supplied money in this manner to other
companies through the Receiver of Revenue. The manner how the money
was handed out to these companies and how the whole process worked
is unknown to me. The total amount of money that was put into the
private accounts of Dr O Herrigel and the other two is above R6 0
million and we do have to get an high Court order in Switzerland to
get the statements from these banks."
was not satisfied with these lies and pursued it. So e.g. he told
van Vuuren on 10th September in -a letter handed in as Exhibit "K",
that he wanted to visit van Vuuren that day, inter
to "add a small annexure to my report, how and where in the
Fiscus Building I met with Dr Herrigel. " Bock also admitted in
his evidence under cross-examination that also this statement was an
absolute lie in that he never met with Dr Herrigel.
was still not satisfied. Shortly before 19th December, 1992 he made
a statement to the reporter-in-chief of the Windhoek Advertiser for
publication in that newspaper, after numerous messages to that
reporter to come and see him in prison for an interview. Bock
admitted in cross-examination in Court that the report appearing as
the main story in the Windhoek Advertiser of 19th December, 1992
under the heading "Three top Govt, men names in R64 million
theft" was a true and accurate rendering of his interview with
the said reporter. It is best therefor to quote the article in full:
an official in the department of customs and excise, stands accused
by the State of unlawfully appropriating government money in the sum
of R2 641 000 which, he claims, he appropriated on the instructions
of one of the three government principals.
I am telling you today is going to be part of my evidence in the
next year,' Bock said.
interview was arranged after numerous messages had been sent to the
Advertiser's offices in which Bock requested a meeting with the
reporter-in-chief. The police commercial branch was contacted and
Warrant Officer Jan van Vuuren spoke to General Foffie Badenhorst,
who said the police had no objection to the interview.
prison authorities said it was not in their hands to grant leave for
the interview because Bock was still awaiting trial and only the
police investigating the case against him could give clearance for
interview was delayed and a prison official who sat in on the
interview explained that it was due to the considerable distance -
almost a kilometre's walk - from the section where Bock is detained
to the office allocated for the interview.
reporter greeted Bock and told the latter, now bearded, that his
appearance was good. That seemed to take Bock by surprise, and he
pulled up his tattered T-shirt to reveal that his jeans were hoisted
up with braces. He said his condition was poor due to lack of ample
and wholesome food.
said he would not speak to the reporter in the presence of Warrant
Officer Van Vuuren and asked him to leave the office. The prison
officer could be present, he said.
said R64 million had been taken out, as he put it, from an account
of the Receiver of Revenue in Windhoek and the money was exchanged
at a rate of R3 against DM1, either in Cologne or Antwerpen. After
the exchange was made the money was given to a personal friend of
one of the three government principals, and that money was placed in
an account of the City Corporation Bank BGMBA.
was a joint account of the three government principals and Bock
startled both the reporter and prison official when he mentioned the
names of the three principals. The reporter was speechless but Bock
assured the newsman that he had not misunderstood him. He repeated
said Inspector Wimpie van Vuuren, also of the police's commercial
branch, knew about everything and had done nothing about it. Bock
also named a big German company with extensive interests in Namibia
as being involved in the graft he mentioned.
could appropriate R2 641 000 for himself on the instructions of one
of the three principals, and said that when his trial opened in the
High Court he would go into more detail. Hopefully by then he would
have certain bank account numbers which he could have had already
for he had written a letter to a banking official in Switzerland to
obtain certain information.
I wrote that letter I was already in detention and I asked and
obtained permission to use the post box number of Inspector Wimpie
van Vuuren. If there was a reply I have not received it until this
day,' Bock said.
related details about the Falcon 900B jet deal. He said that a
commission of R15 million was payable on the controversial
presidential jet, and he named the government principal who had
received the commission.
said if he could be out of prison while awaiting trial he would be
afforded the opportunity to lay his hands on the documentary proof
in support of his allegation.
he said after being asked several times how he could make such
allegations if he could not even in one instance substantiate those
statements with documents.
and Dr Reinhard Strowitzki, 36, arrested with him on charges of
suspected theft or fraud involving several million rand which were
fraudulently obtained, according to the State's allegations, by
paying out diesel fuel subsidies to fictitious recipients.
who hails from a top family and whose father established the first
butter factory in Namibia many, many
ago not far from the Elefantenberg rail head near Otavi, is
unmarried and lived in a rather comfortable home in Klein Windhoek.
His father was also one of the foremost earlier aviators of the
country and engraved on the old man's tombstone is an exact replica
of the Focke Wulf 9 0 fighter interceptor which was part of the
said he was going to apply for bail
and that he had understood
that he could
secure bail which would be fixed at
R50 000 "
this interview Bock did not claim to have acted
and without knowing of any fraud or theft.
amount of R2 641 000 stated by him as the amount he was allowed to
misappropriate was probably a reference to the amount alleged by the
State to have been misappropriated by him and Strowitzki namely R2
461 958 but where Bock inadvertently used the figures 641 instead of
of the important features of this interview were :
Bock admitted that he misappropriated Government money in the amount
of R2 641 000 in accordance with instructions from one of the three
alleged Government principals who took out R64 million of Government
money from the account of the Receiver
Bock did not mention Strowitzki's name or role.
Bock assured the reporter that what he was telling the reporter
would be part of his evidence the next year in the High Court.
was however not the end of Bock's efforts to
deceive the police,
the Court and the public with
he appeared in the magistrate's court for bail on 1st April, 1993 he
persisted with his lies in stating under oath:
was working for my salary and I got instructions from the Minister
of Finance to have A2 (then Strowitzki) as an agent."
was alleged by Bock in his evidence in this
Court and admitted by
van Vuuren that Bock did
admit to him after his release on bail
the commencement of the trial in the High Court,
his allegations in his written statement to
van Vuuren and in his
interview with the reporter
were fabrications originating from
is probable that Strowitzki abandoned his reference to Herrigel and
Brandt in his founding affidavit in support of his aforesaid
constitutional pre-plea application as well as in his plea
explanation in this
because Bock had by that time already withdrawn from the conspiracy
to falsely implicate Herrigel and Brandt and this obviously weakened
the prospects of succeeding with the deception.
the precise reasons for Strowitzki's change of tactics, it is
significant that Bock, co-accused and co-conspirator in the
aforesaid attempted deception, who would know precisely how he and
Strowitzki reached the agreement to tell the story, now testified
under oath that the whole story was a fabrication. Although Bock
has been shown to be an unconscientious liar, there could be no
reason to repudiate Strowitzki, if there was any substance in the
had the audacity to contend that he did not realise he was
committing a crime because he was acting in terms of the special
agreement and was bona
and without any guilty intent at any stage.
Strowitzki testified that he obtained a doctorate in economics at a
German University and also studied Criminal law in so far as it
affected economics. He gave himself out, also in Court as an
experienced economist and business person. Whether he lied in this
regard, the Court does not know. It is clear however that Strowitzki
is an intelligent person but without much respect for the
intelligence of other mortals and apparently also not for the
intelligence of the Court.
person in his position could never have thought for one moment that
Ministers and other Government officials -involved in or
masterminding such a deal were acting lawfully and above board. No
wonder that Bock in his aforesaid interview with the Windhoek
Advertiser described the deal as "appropriating government"
as Strowitzki alleged, Brandt had instructed him not to tell Bock
about the deal because he as an extrovert, would tell others, he
must have realised that the secrecy was indicative of an underhand
and illegal deal.
this was a bona
contract with Government, surely one would have expected an
agreement in writing with witnesses and setting out precisely the
terms and the whole modus
relating to the implementation of the agreement.
is common cause that the monies received by Strowitzki, paid into
his banking account and converted to his own use, were State funds,
belonging to the Namibian nation. It is also common cause that the
persons and companies to whom the cheques were made out, did not
receive the money and did not give Strowitzki the right to convert
to his own use monies earmarked for them. Surely Strowitzki would
also have known that such conversion to his own use would constitute
fraud and/or theft.
can be no doubt that if an agreement as alleged was ever entered
into, Strowitzki would have realised its illegality.
in conjunction with all his other lies, there can be no doubt that
participation in such a scheme by him would have been with the
knowledge of wrongfulness and intention to defraud and he would on
that basis, also have been guilty of fraud and/or theft.
There are many other factors and circumstances not specifically
discussed in this judgment which point to the falseness of the
"special agreement" defence.
will however be a waste of space and time to deal with all these
factors and circumstances in this judgment. Suffice to say that I
accept the evidence of Brandt and reject that of Strowitzki in
regard to the alleged special agreement. The evidence of Dr Herrigel
that he was not aware of such agreement and had no part in it was
not contested by the defence and that evidence stands
uncontradicted. It follows also from this that there never was such
a special agreement. That finding in itself goes a long way in
destroying the possibility that Dr Strowitzki was misled by Schmidt,
Brandt or any other person into the bona
that Dr Herrigel was the principal behind the scenes in such a
scheme or scam.
the light of all the evidence and the probabilities,
reject the allegations of Strowitzki as to a special agreement as
false beyond all reasonable doubt. The defence based on the alleged
special defence therefore also fails, in so far as it may be
THE SO-CALLED CONSTITUTIONAL DEFENCE
This defence is a continuation of the aforesaid constitutional
application made before plea and which was rejected by this Court in
the judgment on 22nd April, 1994 in S
v Strowitzki & Another,
reported in 1995 (1) BCLR 12 (Nm) .
. It is necessary to point out however that in the aforesaid
judgment, the Court already dealt with the many untruths uttered by
Strowitzki under oath in the aforesaid application. The merits of
the contentions and the fallacies of the argument as it stood at
that stage, were also dealt with to a substantial degree and need
not be repeated verbatim. The thrust of the judgment was however
that Strowitzki was the author of his own dilemma and that there was
no substance in his contention that he could not have a fair trial.
is new is that we have now reached the end
of the trial, bar the judgment on the merits. As I have indicated
the accused Strowitzki has persisted with lies throughout the trial
and is guilty beyond all reasonable doubt and must consequently be
found guilty, unless there is substance in the so-called
constitutional defence at the present point in time.
behalf of the accused it is now contended that the accused did not
have a fair trial because the fundamental right to a fair trial
enshrined in Article
of the Constitution of Namibia is absolute
the accused must be acquitted notwithstanding his apparent guilt.
assume for the purposes of this judgment, without deciding, that the
defence is entitled to raise the defence that the accused did not
have a fair trial at this stage of the proceedings. This would also
be in accordance with the judgment in S
v Burger & Van der Merwe,
. Both Mr Small and Mr Geier have provided this Court
with extensive and thorough written heads of argument.
none of them has referred to the important decision by the late
Berker J.P., in the case of the S v
W P Burger and A G du T van der Merwe,
decided in the High Court of South West Africa during the
pre-independence dispensation on 11th May 198 9, unreported.
the said trial the accused were charged with alleged fraud on 77
charges containing 3 133 separate items of having submitted false
claims to the Government for payment in their capacity as district
surgeons. These charges were based on alleged offences committed
many years before the accused were charged, many allegedly committed
more than 10 years before the commencement of the trial. There were
also several important alleged irregularities in the course of the
for the defence, advocate O'Linn as he was at that time, contended
before judgment on the merits, that the accused did not have a fair
trial because of the inherent difficulty of defending alleged
offences allegedly committed so far in the distant past, combined
with proven irregularities in the course of the investigation. He
contended that the aforesaid factors tainted all the evidence and
prejudiced the accused in their defence throughout the trial. Berker
J. P., as he then was, upheld the defence contention and acquitted
both accused on all the charges.
learned trial judge had this to say about the fair trial issues:
vraag wat beantwoord moet word is egter of die onreelmatighede wat
in hierdie saak plaasgevind het wel van so 'n aard is dat, soos
mnr. O'Linn gesubmitteer het, geregtigheid
nie geskied het nie en die beskuldigdes derhalwe
geregtig is om onskuldig bevind te word. 'n
Onreelmatigheid in verband met strafregtelike verhore is soos volg
deur Botha A.R. in S
1983 (3) S.A. 171 omskryf:
speaking, an irregularity or illegality in the proceedings at a
criminal trial occurs whenever there is a departure from those
formalities, rules and principles with which the law requires such a
trial to be initiated or conducted (see R
1918 AD 373 at 376; S
1962(3) SA 551 (A) at 557) ... the basic concept underlying s 317(1)
is that an accused must be fairly tried (see S
v Alexander •
, 1965(2) SA 796 (A) at 809 C-D; and cf S
v Mushimba en Andere,
1977(2) SA 829 (A) at 844 H).'
is egter duidelik dat nie elke onreelmatigheid wat binne die bestek
van bogenoemde definisie val, noodwendiglik die gevolg het dat 'n
beskuldigde onskuldig bevind moet word nie. Daar is tientalle
gewysdes wat hierdie stelling uitwys. 'n Beskuldigde behoort slegs
onskuldig bevind te word, of sy skuldigbevinding op appel of as
gevolg van 'n spesiale inskrywing in terme van die Strafproseswet
tersyde gestel behoort te word, indien geregtigheid as gevolg van
die onreelmatigheid nie geskied het nie. Die
opmerkings van Rumpff, H.R. in S y
1977(2) SA (A), te bl. 844, is van toepassing, waar hy se:
Strafprosesordonnansie vereis dat indien daar 'n onreelmatigheid
plaasgevind het, 'n skuldigbevinding alleen tersyde gestel kan word
indien geregtigheid inderdaad nie geskied het nie. Die
"geregtigheid" waarna hier verwys word is nie 'n begrip
wat veronderstel dat die beskuldigde noodwendig onskuldig is nie.
Geregtigheid wat geskied het in hierdie sin, is die resultaat wat 'n
bepaalde eienskap van verrigtinge aandui. Die eienskap toon aan dat
aan vereistes wat grondbeginsels van reg en regverdigheid aan die
verrigting stel, voldoen is. Die vraag of onreelmatige of met die
reg strydige verrigtinge in verband met 'n verhoor van 'n
beskuldigde van so 'n aard is dat dit gese kan word dat van daardie
grondbeginsels nie nagekom is nie, en geregtigheid dus nie geskied
het nie, sal afhang van die omstandighede van elke geval en sal
altyd 'n oorweging van publieke beleid vereis.'
is sekere onreelmatighede wat van so 'n aard is dat dit sonder meer
aanvaar word dat geregtigheid nie geskied het nie. Dit is egter
buitengewone gevalle - sien S
1961(9) SA 752 (A) en die verwysing daarna in S
v Mthembu and Others,
1988(1) SA 145 (A).
Geval waar 'n onreelmatigheid op sigself bevind was om 'n
regskending uit te maak is S
1983(3) SA 499 (A). Sien ook S v
1979(3) SA 895 (T). Op die ander kant is in Mthembu
se saak (supra)
die onreelmatigheid bevind om nie van so 'n aard te wees om 'n
regskending daar te stel nie.
slot van sake moet elke saak op sy eie feite beoordeel word, en soos
Williamson, J. in S
v Manqcola and Others,
1987(1) SA 512 (B) dit gestel het:
It is abundantly clear from a consideration (of the cases quoted)
that a value judgment has to be made as to the nature and extent of
the prejudice to which an accused has been subjected
soos Rumpff H.R., dit ook in die laaste gedeelte van die bogenoemde
passaat van Mushimba
se saak gestel het. Sien verder S v
1983(4) SA 621, waar ook beslis was dat die bewyslas op die Staat
rus om te bewys dat geen regskending plaasgevind het as gevolg van
'n bewese onreelmatigheid nie.
is nie 'n saak waar een of twee onreelmatighede, waarop die
verdediging steun, geskied het nie, maar eintlik 'n hele reeks
onreelmatighede van min of meer ernstige aard. Basies kom dit daarop
neer dat die hele ondersoek in al sy fasette deurspek is met
onreelmatighede, baie waarvan op sigself nie van geweldige belang is
nie. Daar is egter ook instansies waar wel ernstige onreelmatighede
geskied het. Ek het na sommige van hulle verwys. Dit is egter die
kummulatiewe effek van al hierdie onreelmatighede wat die Hof, na my
mening, in ag moet neem om tot 'n beslissing te kom of dit van so 'n
aard is dat geregtigheid inderdaad nie geskied het nie.
dit uit die gewysdes blyk (sien bv. Mushimba
se saak te bis 844) is die geregtigheid wat hier ter sprake is, nie
'n begrip wat veronderstel dat die beskuldigdes noodwendig onskuldig
is nie. In hierdie geval wil ek dit duidelik stel dat, na my mening,
die Staat geslaag het om te bewys dat die beskuldigdes wel in 'n
getal gevalle bewustelik eise vir vervoerdienste ingedien het,
welwetende dat die spesifieke vervoerdienste nie gelewer was nie, en
dat die hoofverweer, naamlik dat 'n geweldige getal vervoer deur
agente plaasgevind het, behalwe in 'n relatief klein getal gevalle,
nie aanvaarbaar is nie, en dat hulle wel skuldig bevind kon word op
sekere van die klagtes.
baie ernstige oorwegings het ek egter tot die slotsom gekom dat daar
onder die spesifieke omstandighede van hierdie saak daar soveel
onreelmatighede plaasgevind het, dat- geregtigheid in die sin soos
dit deur die aangehaalde gewysdes uiteengesit is, nie sal geskied as
beskuldigdes skuldig bevind word nie . "
judgment by the late Berker J.P., later the first Chief Justice of
the Supreme Court of Namibia after independence, should be followed
by this Court in so far as it has not been overtaken by provisions
of the Constitution of Namibia.
decision is one of many in the pre-independence era in Namibia as
well as South Africa which reaffirmed the basic principles of a fair
trial as well as that relating to other fundamental rights. The
culture of human rights does therefore not commence with
independence and the enactment of the new constitutions in Namibia
and South Africa, even though the new constitutions abolished the
discrimatory and security-dominated legislative dispensation and the
principle of the supremacy of parliament. Consequently the Courts
can now also declare laws of parliament unconstitutional and null
and void on the ground of being in conflict with human rights
enshrined in the aforesaid constitution.
accumulated wisdom contained in the precedents of the past as well
as present dispensation on human rights issues such as the meaning
and ambit of the fair trial requirement, must therefore be
regarded as an
source of contemporary values and norms of society and as such, of
the meaning and ambit of the expressions such as "fair trial"
and "reasonable", etc.
of counsel has addressed me on onus. In my view however the overall
onus is on the accused to satisfy me that he did not have a fair
trial. However, my conclusion would not be different even if the
onus was on the State to satisfy me that the accused had a fair
question of onus was fully discussed and the precedents on onus
reviewed in my recent separate judgment in S
NmHC, 19.06.96, unreported, where I came to the conclusion that when
dealing with an alleged breach of a fundamental right contained in
in contrast to the freedoms enumerated in Article 21(1) , the
onus as well as the overall
onus is on the person who alleges a breach.
Geier also contended that fundamental rights in Articles
are absolute and unqualified in contrast to the fundamental rights
to freedoms in Article 21(1) which are subject to the limitations in
is true that in the judgment of Frank J. in S y
it was assumed without discussing the precedents other
Attorney-General, Namibia In re Corporal Punishment,
1991(3) SA 76
that the fundamental rights contained in Article
of the constitution are absolute and unqualified. In my judgment in
the same case I referred to the subsequent decision of the Supreme
Court of Namibia in S
NmSC, 6.02.96, unreported, from which it appears that the Supreme
Court has abandoned the dictum
in the In
re Corporal Punishment
decision. I also referred to several other decisions of the Namibian
High Court as well as the Constitutional Court of South Africa. I
came to the conclusion that the dictum
that the fundamental rights in Article
are absolute and unqualified in
the sense in
which this term was applied in the ratio
in the In re
decision, is not valid.
of course depends on what is meant by the words "absolute and
unqualified." If it is merely meant, as I think Frank J.
understood and used the expression in his judgment in S
that the fundamental rights must first be defined to establish its
meaning and ambit and that the fundamental rights so defined, are
absolute and unqualified, then there may be something to be said for
the proposition that the rights are absolute and unqualified.
construction however was not the construction applied in the ratio
in the In
re Corporal Punishment decision,
aforesaid construction used by Frank, J. would in my respectful
view not be useful in deciding whether the fundamental right has
been breached when the fundamental right is couched in terms which
are relative and imprecise, and where its meaning and ambit must
nevertheless be established by using the values-test in conjunction
with a proportionality test as was done by the Court in the S
This is further underlined if one looks at some dictionary meanings
of the word "absolute" such as e.g. contained in the
Advanced Learners Dictionary of Current English by A S Hornby
where the word is defined as: "complete";
; "unlimited"; "having complete or arbitrary power";
"unconditional"; "unqualified"; "not
dependent or measured by other things".
(My emphasis added).
both Frank J. and I, certainly did not accept that the fundamental
rights as stated in Article 8 were "complete",
"undoubted", "not relative", and "not
dependent or measured by other things." The very fact that we
both applied a "values-test"
as defined in the In
re Corporal Punishment decision itself,
supplemented by a proportionality test, militates against the
concept of "absolute and unqualified. "
now to the fundamental rights contained in Article
it follows that the terms "fair trial" used in the heading
as well as key words such as "reasonable time", "failing
which the accused shall be released", "interests of
juveniles require", "shall be presumed to be innocent
until proved guilty according to law", "afforded adequate
time and facilities", "shall be entitled to be defended by
a legal practitioner of their choice", "no court shall
admit in evidence against such persons evidence which has been
obtained from such persons in violation of Article 8(2) (b) hereof",
are all relative
terms which must be defined, and the content and ambit ascertained.
agree with what was said e.g. in the S
(NmHC), 1996(2) BCLR 197 (NmH):
is, of course a relative term and what constitutes a reasonable time
for the purposes of Article 12(1) (b) must be determined according
to the facts of each individual case. The Courts must endeavour to
balance the fundamental right of the accused to be tried within a
reasonable time against the public interest in the attainment of
justice in the context of the prevailing economic, social and
cultural conditions to be found in Namibia."
my view, the constitutionality of a law, rule or action must be
determined by making use of the values-test laid down in the Supreme
Court decision "In
re Corporal Punishment"
as supplemented by the proportionality
particularly where the values test is inadequate, as held in S
a better understanding of what is meant by these tests, it is
best to repeat what was said in my judgment in S
the decision In
re Corporal Punishment,
the Court also held in the words of Mahomed, A.J.A., that:
question as to whether a particular form of punishment authorised by
the law can properly be said to be inhuman
the exercise of a value judgment by the Court. It is however a value
judgment which requires obj
to be articulated and identified, regard being had to the
contemporary norms, aspirations, expectations and sensitivities of
the Namibian people as expressed in its national institutions and
its Constitution, and further having regard to the emerging
consensus of values in the civilised international community (of
which Namibia is a part) which Namibians share. This is not a static
exercise. It is a continually evolving dynamic. What may have been
acceptable as a just form of punishment some decades ago, may appear
to be manifestly inhuman or degrading today. Yesterday's orthodoxy
might appear to be today's heresy.'
is to be noted that it was not said in Mahomed, A.J.A.'s judgment
that the "value judgment" is also applicable to the
decision of what amounts to "torture" or "cruel"
treatment or punishment. It will however assume that it must be.
C.J., who agreed with the conclusion
arrived at by Mahomed,
contributed some telling remarks regarding
"basic enquiry" and the predominant
Although I do not agree with
of these criteria by Berker,
C.J., his aforesaid remarks are
instructive and are not necessarily
or in conflict with the judgment
of Mahomed, A. J. A., in which
both he and
Trengove, A.J.A. concurred. There
no reason not to follow the dictum
Berker, C.J., at least in so far as it set out the predominant
criteria. I therefore repeat his remarks for the purposes hereof:
are only a few general comments
I should like to make in
it is extremely
and useful to refer to, and analyse, decisions by other Courts such
as the International Court of Human Rights, or the Supreme Court of
Zimbabwe or the United States of America on the ■ question whether
corporal punishment is impairing the dignity of a person subjected
to such punishment, or whether such punishment amounts to cruel,
inhuman or degrading treatment, the one major and basic
consideration in arriving at a decision involves an enquiry into the
generally held norms, approaches, moral standards, aspirations and a
host of other established beliefs of the people of Namibia.'
to say that the approach and ratio in the Supreme Court decision In
re Corporal Punishment,
and its application by O'Linn, J. in S
has not been overruled insofar
as it was held
in the latter decisions that when deciding whether a particular
provision of a statute providing for punishment amounts to cruel,
inhuman or degrading treatment or punishment, an objective value
judgment must be made by the Court, inter
by having regard to the 'aspirations, norms, expectations and
sensitivities of the Namibian people' and in the words of the late
Berker, C.J., 'following the approach that the one major and basic
consideration at arriving at a decision involves an enquiry into the
generally held norms, approaches, moral standards, aspirations and a
host of other beliefs of the people of Namibia.'
approach is also followed substantially
the USA as appears from the decisions referred to in the judgment of
my brother Frank, J.
also agree with Frank, J. that the postulated value judgment 'must
be judicially arrived at by way of an attempt to give content to the
value judgment by referral to the prevailing norms which may or may
not coincide with the norms of any particular judge.' As was pointed
out in Coker
1977, 433 US 584 at 592, these judgments 'should not be, or appear
to be, merely the subjective views of individual justices; judgment
should be informed by objective factors to the greatest possible
place of the proportionality
test in determining
law, rule or act is unconstitutional, was explained as follows in my
judgment in S
question arises how to reconcile the 'current values' test with
aforesaid 'proportionality test.
seems to me that the aforesaid proportionality
is to be regarded as part and parcel of the 'current values' test in
that it should be seen as logically flowing from current values and
consistent with current values, but at the same time, a more precise
measure what is to be regarded as constitutionally cruel
unusual punishment or constitutionally cruel, inhuman and degrading
punishment. It can also be regarded as an independent exercise of
the Court's discretion and responsibility as the final arbiter
of the correct interpretation and
application of the fundamental rights
freedoms contained in the Namibian Constitution."
the aforesaid decision I also dealt extensively
manner in which contemporary values can b<
ascertained from public opinion. See
p. 12, last par. - p. 22, end of second pc
is when applying the values-test aforesaid,
that decisions of Courts both before and
after the pr constitutional dispensation are important sourc
the traditions, norms and
values of the Namibi South African
decisions such as
v Burge der Merwe,
and the decisions referred are therefore sources
of such traditions, values.
follows that the new constitutions in Namibia and South Africa can
be regarded as having crystallised and codified ■ to a substantial
degree, traditions, contemporary norms and values already
established over decades in Namibia and South Africa in regard to
concepts such as the requirements of a fair trial.
I accept that the fair trial provisions in Article 12, read with
Article 5 and 25 of the Namibian Constitution, leave scope for
development over and above the specific rights enumerated in the
subarticles of Article 12, it is not always necessary to search for
interpretations and solutions not already crystallised in the
Namibian and South African law of precedent.
12(1) (b) as interpreted and applied in S y
is an example of a right probably extended by the Constitution over
and above the law of precedent.
it was also pointed out that current public opinion properly
identified and evaluated by the Court, could be an important
indicator and source of contemporary norms and values and could not
be ignored when interpreting, evaluating and implementing provisions
of the constitution dealing with fundamental human rights. This is
also the position in the USA as explained in S
There is also some analogy to be found in Canadian case law when the
Courts interpret the expression "disrepute" in section
24(2) of the Canadian Charter of Rights and Freedoms which
provides that evidence will be excluded if- it is established that
the admission of such evidence will bring the administration of
justice into disrepute. See infra
par. 8.8 of the article by Dr S E van der Merwe entitled "The
Exclusionary Rule and a Bill of Rights".
my respectful view the main
aim of the fair trial provisions in the constitution is to ensure
that the innocent is not punished and the guilty does not escape
punishment. This main aim is also in accordance with the
contemporary norms and values of Namibians.
is therefore apt to reiterate observations in this regard made by
the High Court of Namibia in its decision in S
v van den Berg,
1995(4) BCLR 479 (Nm) regarding the approach when interpreting and
applying provisions of the constitution providing for fundamental
general approach when interpreting the Namibian Constitution is:
must broadly, liberally and
purposively be interpreted so as
avoid the "austerity of tabulated
so as to enable it to
continue to play a creative and
role in the expression and achievement
of the ideals
and aspirations of the
nation, in the articulation of the
bonding its people and in
disciplining its Government '
of the Republic of Namibia v Cultura 2000,
1994(1) SA 407 (NmSC) at 418 F - G.
approach has been followed in several Namibian decisions, inter
in the Kauesa
as pointed out in the Kauesa
doing so, a court cannot be
selective and apply this approach
when dealing with limitations on freedom
of speech. The
approach must also be
applied when considering the limitations
fundamental rights, including the
case where a fundamental
freedom is in
conflict with a fundamental right '
at 56 J - 57 C.
these remarks can be added that when the Court has to interpret
various fundamental human rights, some that may seem to be in
conflict with others, the Court should apply the said approach in a
balanced and even-handed manner to all
such fundamental rights. So, for example, as pointed out (supra)
article 12 must be interpreted and applied by a court in the context
of, for example, articles 6, 7, 8, 13 and 16, read with articles 5
v van den Berg,
495 F - I.
Court then dealt with the role of the Court and the aim of the
criminal justice policy in general and the Criminal Procedure Act in
purported right on which Mr Maritz
is the right to be able to rely on a
lower court's decision in a
when in favour of an accused as a final
not subject to reversal by a higher
court on appeal by the State.
contends that an accused is prejudiced if he
cannot continue to rely on such a
decision because of the
amendment of the
Criminal Procedure Act
seems to me that such a purported right should not be upheld by a
court of law. Similarly a court of law should not protect an accused
from purported prejudice arising merely from the fact that the State
is given a provisional right of appeal to reverse a
court decision, where that decision mistakenly allowed the acquittal
of an accused.
my view, the role of the court in criminal matters and the primary
aim of criminal procedure should be to ensure that substantial
justice is done. This Court can do no better than to adopt the words
of some eminent Judges when interpreting ■ the provisions of
section 247 of Act 31 of 1917:
to see that substantial justice
done, to see that an innocent person is not punished and that a
guilty person does not escape punishment.'
words were used by Wessels CJ in R
1935 AD 230 at 323, when interpreting the provisions of section 247
of Act 31 of 1917, relating to the role of the Court and the powers
and duties relating to the calling and recalling of witnesses.
above quotation was adopted by another eminent Judge, the late
Ramsbottom J in R
1953(3) SA 689 (T) . It is in line
of Curlewis CJ in R y
1928 AD 265 at 277. The latter judgment was followed by many
subsequent decisions also in this Court and was correctly described
by Broome J in R
1949(2) SA 626 (N) at 628 as the locus
on the subject of the Court's power and function under the said
the words 'just
in the case' I understand the legislature to mean to do justice as
between the prosecution
and the accused.
is not a game
where one side is entitled to claim the benefit of any omission
made by the other side, and the Judge's
in a criminal
is not merely that of an umpire to see that the rules of the game
are applied by both sides. A Judge is an administrator
a figure head,
he has not only to direct and control the proceedings according to
recognised rules of procedure but to
justice is done The
of section 247 seems to me to give a Judge in a criminal trial a
wide discretion in the conduct of the proceedings, so that an
innocent person be not convicted or a guilty person get free by
of some omission, mistake or technicality.' (Emphasis mine.)
these words were used in connection with the role of the Court when
applying the then section 247 of Act 31 of 1917, the words express
the basic aim of the courts and the provisions of the Criminal
Procedure Act to ensure substantial justice, by ensuring that an
innocent person is not punished and that a guilty person does not
perception exists in some circles that the fundamental right to a
fair trial focuses exclusively on the rights and privileges of
accused persons. These rights however, must be interpreted and given
effect to in the context of the rights and interests of the law
abiding persons in society and particularly the persons who are
victims of crime, many of whom may be unable to protect themselves
or their interests because they are dead or otherwise incapacitated
in the course of crimes committed against them.
perception which needs careful
thought is the role of the State
law and criminal proceedings. The
in a criminal case, acts formally in the name of the State, but is
not an entity acting in its own cause. The counsel and/or lawyers
acting for the State are officers of the Court who are expected also
to divulge to the Court matters favourable to the accused and as
such, they not only have to attempt to ensure that a guilty person
does not escape punishment, but that an innocent person is not
convicted and punished. The prosecution in our criminal law and
procedure is not the all powerful, specialised, competent, and even
evil entity with all the means at its disposal bent on the
conviction and punishment at all costs of a hapless and helpless
innocent. The prosecution should rather be seen as the
representative of society, of the people and of the victims of
a developing country like Namibia, the prosecution suffers from all
the constraints caused by lack of financial means, experience and
proper qualifications and is not always dealing with the
unrepresented, ignorant, innocent accused who is being charged with
a minor offence. No, the prosecution often has to confront
intelligent, well-educated, callous and dangerous criminals
committing grave crimes, often members of powerful crime syndicates,
with all the expertise and means at their disposal to frustrate and
defeat the end of justice. Furthermore, the prosecution must
overcome formidable hurdles including that it must prove
its case beyond all reasonable doubt, after being compelled
provide before trial, full particulars of its
including the statements of their
witnesses. In contrast the
defence is not
compelled to provide particulars of the
or to disclose the statements and
identity of defence witnesses
not even at the time of
is required to maintain complete openness; not so the defence and
the defence is never required to prove the defence beyond reasonable
doubt, not even in regard to issues where a statutory presumption
purports to place a burden of proof on the accused in respect of the
particular element or issue.
the escalation of crime and the progressive disillusionment of the
public with the enforcement of the law and the system of justice as
applied in the courts of law, the claims for further concessions to
accused persons proliferate without corresponding and balancing
measures to ensure, not only that innocent persons are not punished
but also to ensure that the guilty do not escape punishment.
our developing country, it is apt to remember the
proverb, used by Jackson J in Terminiello
quoted in Kauesa
v Minister of Home Affairs,
1994(3) BCLR (1) (NmH) at 241 - 24B:
old proverb warns us to take heed lest we walk into a well from
looking at the stars.'
aforesaid duty of the courts in interpreting and giving effect to
all the aforesaid fundamental rights enumerated in the Constitution
and not only rights of accused persons, flows from the duty and
power to uphold, protect and enforce all fundamental rights and
freedoms enumerated in Chapter 3 of the Namibian Constitution, which
duty and power are clearly set out in article 5, read with article
25 and article 1(1) of the said Constitution. In the last-mentioned
subarticle, the rule of law and justice for all are stated to be
part of the supreme law of Republic of Namibia."
v van den Berg,
489 C - 491 A.
Geier also urged on the Court to uphold the
rights of the individual.
There is no problem in that submission provided those rights are
interpreted, applied in the context of and balanced with that of
law-abiding individuals in society, and law-abiding victims and
potential victims in society.
the quotation supra
v van den Berg
as well as my comment on the protection of the individual in S v
at p. 24 and 25 when dealing with the remarks of Chaskalson P., in S
v Makwanyane & Another,
1995(3) SA 391 (CC) in regard to securing for "individuals
the full measure of the constitution's protection".
may be said that the interest and rights of law-abiding individuals
in society need not be considered in a case like the present where
the allegation is that the accused defrauded the State,
stole from the State and not from the individual law-abiding
citizen. This again is a fallacy. The money obtained by fraud or
theft is public money obtained also from individuals and due to be
in the interest of individuals. The interest of every individual is
eventually affected by such fraud or theft. The State again is the
not owner, but merely the custodian and where the prosecution is in
the name of the State, the State acts on behalf of the law-abiding
citizens in society, including the individuals, because that is the
only practical way in bringing the accused to justice.
has also referred me in his additional- heads to an article with the
title "The Exclusionary Rule in a Bill of Rights", by Dr S
E van der Merwe of the Department of Public Law at the University of
Stellenbosch, in his representations to the South African Law
Commission on 30th May, 1989.
learned author in this interesting and well-researched article came
to the conclusion that the Canadian approach is the correct one.
seems to me that the Canadians have managed to strike a balance
between competing interests. 'The law' said Camen and Carter with
reference to the exclusionary rule, 'should strive to balance the
interest of the citizen to be protected from illegal invasions of
his liberties by the authorities and the interest of the state to
bring to justice persons guilty of criminal conduct. An attempt to
reconcile these two interests which may come into conflict will mean
that sometimes such evidence will be admitted and sometimes
movement in the USA away from the strict exclusionary rule and the
development and exposition of the Canadian approach are dealt with
in par. 8.3 - 8.9 of the said article. Although it deals with the
exclusionary rule regarding evidence, it is relevant and applicable,
to the fair trial issue to be decided in this judgment. It is best
therefore to quote these paragraphs in full. They read as follows:
Now, it seems to me that a rigid exclusionary
rule is not acceptable. It
the courts of a discretion, and its strict application might produce
results which cannot be harmonized with considerations of public
of any fundamental right of a suspect (accused) may lie somewhere on
a scale ranging from the trivial, technical and inadvertent to the
gross, violent, deliberate and 'cruel'.
It is submitted that there should be a qualified exclusionary rule,
which ought to be formulated and applied in the light of
considerations of public policy. Would public policy demand
exclusion of evidence which is of high probative value but which was
also obtained as a result of a technical and inadvertent
infringement of a fundamental right?
The American experience has shown that the strict application of a
rigid exclusionary rule can bring the criminal justice system into
disfavour. In 1974 the director of the criminal justice division of
the attorney-general's office in Illinois (USA) complained as
one recent instance in my experience a person murdered a young
teenage girl and hid her body in a rural farm area. The police got a
warrant signed by a judge, which gave them the right to search.
[B]ut there was a technical deficiency in the warrant, and the Court
held that the very body itself, the nature of the crime itself, had
to be suppressed. It was a magical disappearing act. It was as if
this young girl never walked the earth.'
is the type of situation, and this
is the kind of complaint, that
the USA the rigid
rule has come under increasing attack, and the US Supreme court has
in the past few years 'made a concentrated effort to whittle back
the expansions of Miranda
that occurred during the late 1960's and 1970's.' The US supreme
court has also relaxed the rigidity of the exclusionary rule in
cases of good faith, for example, where a law enforcement officer
had reasonably relied and acted upon a statute which was only at a
later stage held to be in violation of the fourth amendment.
seems as if the gentle pruning of the exclusionary rule in the USA,
became necessary because the rule was reaching into areas where it
no longer served the best interest of society, the very interest it
was originally designed to protect. The rule went beyond its
original purpose and terrain, allowing, for example, an accused to
benefit from bona fide but illegal police actions: and the accused
was permitted to take advantage of technicalities.
the fact that the exclusionary rule has in the USA been trimmed,
should not detract from its basic value - and its trimming should,
in fact, merely be seen as an admission that the exclusion or
admission of illegally obtained evidence is a matter which should
be decided in the light of more than mere 'strict law. '
Rupert Cross has said (my emphasis) :
robust judiciary is the best guarantor of the rules of evidence. The
fruits of the poisoned-tree doctrine with its automatic exclusion of
improperly obtained evidence is the product of lack of confidence in
some improprieties are venial, or such as must be tolerated having
regard to the gravity of the situation with which the police were
faced, others are fit subjects for action against the police without
the exclusion of the improperly obtained evidence, while others are
so gross that it would be base for the State, however stringent the
official action against their perpetrator might be, to rely on
evidence produced by them.'
approach which allows scope for all the above factors to be
considered, is essential.
It is submitted that there is much value in the 'Canadian approach'
: If the court is satisfied that evidence was obtained in a manner
which infringed or denied any rights or freedoms guaranteed by the
Canadian Charter of Rights, the
evidence shall be excluded if it
established that, having regard to all
the admission of such
evidence would bring the administration
justice into disrepute. This
is contained in section 24(2) of the Canadian Charter. In R
v Collins the
court considered the method of ascertaining the meaning of
'disrepute'. Seaton JA held as follows (my emphasis):
in whose eyes? That which would bring the administration of justice
into disrepute in the eyes of a policeman might be the precise
action that would be highly regarded in the eyes of a law teacher. I
do not think that we are to look at this matter through the eyes of
a policeman or a law teacher, or a judge for that matter. I
think that it is the community at large, including the policeman and
the law teacher and the judge, through whose eyes we are to see this
It follows, and I do not think this is a disadvantage to the
suggestion, that there will be a gradual shifting. I
expect that there will be a trend away from admission of improperly
... I do not suggest that the courts should respond to public
clamour or opinion polls. I
do suggest that the views of the community at large, developed by
concerned and thinking citizens, ought to guide the courts when they
are questioning whether or not the admission of evidence would bring
the administration of justice into disrepute.
Seaton JA was also careful to point out the following:
in section 24(2) of the Charter of Rights suggests a discretion. If
it'is established that admission of the evidence would bring the
administration of justice into disrepute "the evidence shall be
excluded." There is only the one test. When it is passed, the
evidence is excluded. If it is not passed, the evidence is
admitted. There is no basis for any other test, or for the
exercise of a discretion.'
of course, this does not mean that the court cannot consider a wide
variety of factors in determining whether the admission of certain
evidence would bring the administration of justice into disrepute.
in this sense the Canadian courts are left with a discretion.
Anders JA enumerated the following factors, principles and
The words 'administration of justice' include not only the trial
process but the investigatory process. In other words, the
'integrity of the judicial process' depends not only on the conduct
of strictly judicial matters but also on the conduct of the police
in their dealings with suspected offenders.
The administration of justice will be brought into disrepute if the
conduct of the police tends to 'prejudice the public interest in the
integrity of the judicial process. '
The 'integrity of the judicial process' may be prejudiced by the
conduct of the police in several ways, some of which are as follows:
to observe a humane and honourable standard of conduct in the
treatment of persons suspected or accused;
abuse of police powers;
of the police to abide by the law in carrying out their duties.
A balance must be struck between the need for firm and effective law
enforcement and the right of the citizen to be free as far as
reasonably possible from illegal and unreasonable conduct on the
part of the police.
The courts will not be concerned with technical or
of the law by the police-.
In determining whether the violation is 'prejudicial to the
integrity of the judicial process', the court will review all the
circumstances in the light of, at least, the following factors:
seriousness of the offence in the light of the facts relating to
seriousness of the violation and, in particular:
the extent to which the constitutional rights of the accused were
breached in obtaining the evidence;
whether any harm was inflicted on the accused;
the seriousness of the violation as compared to the seriousness of
Was the violation deliberate or inadvertent?"
have no problem with this approach and will endorse it. It is
consistent with what has already been said in this judgment and in S
v van den Berg,
v Burger and van der Merwe.
I may add however that the question whether a breach caused
prejudice to the accused in his defence, is an important element not
only in the consideration of the traditional "irregularity"
but also in the case of a breach of a procedural requirement of the
fundamental right to a fair trial. It is also in accordance with the
approach by the Namibian Supreme Court in Kau
and 15 Others v The State,
1993 unreported, relied on by Mr
Mr Geier now argues that in view thereof that fundamental rights in
Article 12 are "absolute and unqualified" and not subject
to a limitation clause as in Canada since the enactment of the
Canadian Charter, the said approach "can not be of guidance in
Namibia (although a lot can possibly be said for it.)"
do not agree with Mr Geier that the Namibian Constitution provides
for a rigid exclusionary rule, as must be clear from the discussion
on the relative nature of the fundamental rights and the manner in
which those rights should be defined and its ambit determined.
have no doubt that the rigid exclusionary rule as contended for by
Mr Geier is in conflict with the contemporary norms and values of
Namibians at this stage of its development. Such an approach is
with the proportionality test applied in S y
I consequently reject Mr Geier's submission on this issue.
will certainly rue the day when the sort of aberration related in
par. 8.4 of Dr van der Merwe's article, quoted supra,
is incorporated by the Court into Namibian law.
this prelude to the legal
I can now shortly deal with the factual averments relied on
for the contention that the trial was unfair.
Small set out in full the whole course of the trial in regard to the
duration of the trial and the reasons for the many postponements.
is absolutely clear from this uncontested summary that there was no
undue delay in finalising the prosecution and the trial.
postponements were caused by manoeuvres by the defence to obstruct
and delay the speedy conclusion of the trial. See also my
on the first so-called constitutional application.
Strowitzki promised his full cooperation with the police. This was
an empty undertaking. His cooperation was in the form of raising
every conceivable defence, however intrinsically hopeless or in
conflict with overwhelming evidence in the form of real,
incontrovertible documentary evidence and viva
trial dealt with 130 counts of fraud alternatively theft. The volume
of documents and evidence was out of the ordinary. The trial was
unique in the legal history.
was a co-accused who also had to be considered.
were three advocates involved. The extensive request for further
particulars and the supply thereof took time. The continuous
complaints of the accused and his several attempts at raising
complaints about an unfair trial wasted a lot of time.
was granted every possible indulgence by the Court. The State spent
tens of thousands of Namibian dollars to provide an experienced
advocate to defend him.
was not prejudiced in his defence by not being able to recall names
and details. His problem was not forgetfulness, but how to fabricate
a defence where none existed.
complaint of the inability to remember and call possible overseas
witnesses and blaming the State's refusal to provide further funds
are also without substance. At no stage could he produce any
sensible particulars of where these witnesses were to be found and
what they could say. The replies from the banks showed that there
was no possible corroboration for his various stories. If his son
Burkhardt were brought to Namibia and it was shown that he was
involved with his father, a prosecution against him may have
resulted. The lack of particularity of what Burkhardt could
contribute in the line of corroboration was one of the main reasons
why no order could be given for a commission to take his
evidence in Germany. It was also totally impractical. In
the light of the overwhelming evidence against Strowitzki, such an
excursion would only have been another exercise in futility and
further unnecessary delay.
first excuse that the trial could not be fair and the contention now
that it was not fair, appears to have been the only possible defence
to which the defence clung desperately from beginning to end.
ever there was an abuse of the fundamental rights which Namibians
hold dear, it was Strowitzki's concerted attempt to rely on it.
release Strowitzki from prosecution and to prevent his conviction,
would be a mockery of fundamental rights.
judgment on the first constitutional application S v
Strowitzki and Another,
p. 36 D - 37 G.
407 US 514, 33 LEd 2d 101, 92, Ct 2182 at 116 - 8. R
8CRR (2d) 193 (SCO at 213.
guilt was proved overwhelmingly. The trial took a considerable time,
but that was inevitable to bring this unscrupulous person to
justice. The trial was fair
considering all the circumstances.
consequently also reject his defence that he did not have a fair
trial. In the result:
Strowitzki, you are convicted of the 130 charges of fraud
in respect of the amount of N$2 461 958.60.
DID ACCUSED NO. 2,
BoCK HAVE KNOWLEDGE OF THE FALSENESS OF THE CLAIMS SUBMITTED BY
only point in dispute between the State and Bock is on this issue.
The State has inter
placed considerable emphasis on the false defences raised by Bock
during the bail applications, in his two voluntary statements to the
police and in his admitted interview with the Windhoek Advertiser.
As already pointed out supra,
the lies told by Bock continued over the period September, 1992 to
April, 1993. I have also analysed supra
he obviously cooperated with Strowitzki in a joint conspiracy of
deception, in which they in desperation, made the most outrageous
allegations, incriminating prominent but innocent public figures,
such as Dr Herrigel, the former Minister of Finance and Mr Brandt,
the State Attorney. Some time after being released on bail, Bock
admitted that these allegations were all lies but Strowitzki
persisted until the end. This Court however found in the judgment on
these allegations were in fact false. Bock admitted not only that
they were false, but he knew of
falsehood at the time when he made it. His excuse was that he was
under the influence of Strowitzki and would have done anything to be
released on bail. Mr Botes on his behalf also put forward this
excuse in argument.
said excuse is not credible and does not explain Bock's conduct. It
also does not help Bock to avoid the inferences that can and should
be drawn from Bock's conduct after arrest. The following points must
be made :
The lies told by Bock were not little white lies, they were gross
and atrocious, deliberate and reckless, whether or not they
destroyed the reputation of important and innocent public figures,
such as Dr Herrigel and Mr Brandt.
Bock blamed Dr Strowitzki for his scandalous
conduct. First he
testified that Strowitzki
instructed him, but under
admitted that Strowitzki at most advised him
provided him with some information, that he was
at one stage against Strowitzki
apparently because Strowitzki did
not produce the
required or promised statement or
Strowitzki's statement did not come up
however remained vague,
and unconvincing on this issue as on all others, in
examination-in-chief as well as under cross-examination. The fact is
that when he alleged in his two statements to the police and in his-
last bail application in April, 1993 where he alleged that Dr
Herrigel had given him the instructions, he knew that he was lying
and that he himself was the author of those allegations.
as pointed out supra,
struck out on his own. Just as Strowitzki did not mention Bock in
his proposed written agreement with van Vuuren, so Bock did not
mention Strowitzki in his statements to the police and the interview
with the newspaper. He placed himself in the foreground as a
He made a damning admission, if not a confession, in his interview
with the newspaper, where he explained that he was allowed to
misappropriate the amount claimed by the State, by Dr Herrigel. Here
he did not claim ignorance of illegality. He made this statement in
the context of allegations of alleged misappropriation by Dr
Herrigel and two others of R62 million.
He apparently was determined at that time, to tell this false
story in Court.
He committed perjury when he continued to allege, this time
under oath in Court proceedings in April, 1993, that
he acted on instructions of Dr
that Dr Herrigel had told him that he had appointed Bock as his
In his first statement to the police he told at least 19 deliberate
lies and added one in the second statement four (4) days later.
He changed his various false defences as the realization dawned that
the previous false defences, could never succeed.
He says that he would have done anything to get out of prison
because of conditions there. Later in the trial he conceded that he
at least benefitted in that he lost a lot of weight.
problem is that he never thought of telling the police the true
story during all this time when he persisted with his lies, namely
had submitted the claims and that he bona
believed in the correctness and authenticity of the claims and that
he even had written authorities appointing Strowitzki as agent to
submit the claims and receive the money. When the question was put
to him why he never thought of telling van Vuuren this story, he
appeared to be taken aback. Later he ventured a lame allegation that
he did tell van Vuuren, but van Vuuren did not want to believe him.
Mr Geier put it to him that his counsel never put
such an allegation to van Vuuren. Bock replied that he did not
think it important to tell his counsel. This explanation was totally
unconvincing and clearly another lie.
the question arises why did he not tell van Vuuren the version which
he in Court alleged to be the true version?
only reasonable inference is that he did not have such authorities,
that he knew that the claims were false and that the police by then
had sufficient proof of his complicity.
His guilty mind is also apparent from the fact that he never
confronted Strowitzki after his arrest and when it became clear from
van Vuuren's evidence in the bail applications and from the
affidavits and other documentation in the civil proceedings, that
Strowitzki had no authority to submit the claims and to receive the
person in the position of Bock would have confronted Strowitzki and
demanded an explanation. Such a person would have been furious and
would have broken all bonds with Strowitzki and probably also would
have told the police of his bona
fides. Bock had to admit that he never confronted Strowitzki and
could not offer any explanation why not. He also had to admit
that he never thought of confronting Strowitzki.
he conspired with Strowitzki to tell the false story of Herrigel's
instructions and a special agreement.
is certainly not an intellectual giant, but he had passed matric,
was at university and had technical training. He had a relatively
important job. He may be an extrovert but he is intelligent and not
aforesaid conduct after arrest, points to only one inference namely
- knowledge of the false claims, participation in the scheme, a
guilty mind and knowledge of unlawfulness.
Mr Botes further contended that the evidence of Bock that the
purported claimants were all registered in his office as dealers or
users and that there was an authority in each case appointing Dr
Strowitzki as agent entitled to submit claims and receive the
cheques was uncontradicted and had to be accepted. The vast majority
of purported claimants however testified that they did not apply for
registration and had not appointed Strowitzki as agent. The
applications for registration, if any, as well as the authorities,
if any, must therefore have been forgeries. In the context of the
evidence and all the circumstances, such forgeries of signatures
could only have been made by
or his son Burkhardt, acting on his instructions, or Bock himself.
Vuuren testified that in his investigation at Bock's office he only
obtained the authorities placed before Court. There is no person who
could have had the motive to destroy the authorities appointing
Strowitzki as agent. That these authorities were mislaid in the
course of the investigation, is possible, but improbable.
Bock never relied on the existence of such authorities during his
Court appearances in the magistrate's court, or in his written and
oral communication to the police. Why not? The obvious answer seems
to be that he knew that such authorities did not exist in most
probability therefore is that his evidence is also false in this
probability is that Bock was the inside person required as an
admitted fraud by Bock could never have been conducted persistently
and continuously over the period of 8 months from September, 1991 to
April, 1992, without an inside person who would handle all or most
claims from receipt up to processing and the delivery of the cheque
to Strowitzki after its issue. We know that Bock received and
processed the bulk of the claims; he was supposed to check the
claim, authorize the issue of the cheque, receive the cheque and
hand it over or deliver it to Strowitzki.
a trusted inside collaborator functioning as aforesaid, the risk was
too high for Strowitzki to be discovered when a genuine claimant
submits a genuine claim and it is discovered that Strowitzki had
already submitted a claim.
is why Strowitzki approached Bock inter
by means of a letter, Exhibit El, containing the names of a number
of persons and requesting Bock to indicate whether these persons
were already registered, whether they have already submitted claims.
question is why would Strowitzki target Bock for this information!
The answer is that Bock was the inside person, the co-conspirator.
Botes makes the point that it was not proved that Bock had received
any advantage or money from the deal. If he was also the
co-conspirator in the scam, in addition to being Strowitzki's
partner in the Car Rental business, one would have expected proof
that he received a considerable amount of money.
answer to this is that he did receive some perks, even though these
do not indicate that he was a partner
this was not a case where the fraudulent conduct had run its course
and the partners had divided the spoils. The scheme was discovered
and stopped abruptly by outside interference, in the form of arrest
by the police and confiscation of the monies remaining and the
assets. It may be that the division of the spoils was contemplated
for a later stage.
are other strange and suspicious features. After arrest a so-called
friend from Germany brought R300 000 to Namibia from Germany. The
first impression from Bock was that this friend donated the money
for his bail. Later Bock indicated that the friend used R100 000 for
himself and R200 000 was given for bail. Mr Botes must have spotted
the suspicious character of this transaction and intervened with a
leading question or two. He put it to Bock that part of this money
was the proceeds of a house belonging to Bock sold in Germany and
Bock responded in the affirmative.
am not impressed at all with the argument that Bock had received
nothing substantial from Strowitzki or from the alleged conspiracy.
alleges that he never became suspicious when the number of cheques
going to Strowitzki increased dramatically and when many farmers
suddenly came forward with massive claims for diesel far in excess
of what the average farmer could be expected to use. He thought,
that his economic genius Strowitzki, was uplifting the farming
community and the farming economy to such an extent with all his
schemes, that the average cattle and sheep farmers were now also
equipping themselves with their own heavy trucks to transport their
own cattle and sheep to the markets.
asked whether he saw any sign of any of Strowitzki's schemes for
developing Namibia materialising, he had to admit that he did not
see such development. When asked why he never enquired from his
friend and partner Strowitzki as to the progress of his development
schemes or the reason for the dramatic increase in the cheques
payable to him, he had no answer.
Bock is born and bred in Namibia. He grew up on a farm in Namibia.
He would certainly have noticed that the development schemes as
proposed by Strowitzki, were fictions of the imagination and that
the scheme to submit false claims, was Strowitzki's main economic
blamed his seniors for the system at his office. However, any honest
person in Bock's position would quickly have discovered the fraud,
if he was not involved himself.
is therefor significant that when Bock received
several claims from Strowitzki at the same time with the same
particulars of the same persons who allegedly bought the same
amounts of diesel allegedly from the same purported diesel
suppliers, he marked these claims only in red and sent them back
Strowitzki, without reporting the obvious fraud to any person.
Although Bock in his evidence initially admitted that he sent the
claims back to Strowitzki, he later denied it and said that he kept
them in his office. Mr Botes also supported this version. The point
however is that Bock did not report this obvious fraud. He did not
even discuss it with Strowitzki. The only reason for this conduct is
that the fraud in these cases was too blatant and he therefore did
not want to take the risk to process it. But the reason for not
taking the matter further, can only be that he and Strowitzki were
the first claim he signed as diesel
who signed for the purported claimant, at the same time signed as
the person who checked, all in one. He admitted that he had no
authority from the purported claimant to do so.
he claimed that this is what he was taught by his seniors to do when
a claim from a registered user was received unsigned.
explanation again demonstrated that Bock was a liar without
the conclusion of Bock's evidence he made a sort of closing speech
to the Court, now acting as an economic developer of significance
with many investors from overseas just waiting for him to conclude
his case so that they can put into practice all his schemes.
Lordship, I'm (indistinct) and one thing I can complain in this
trial, I ask you now, I would like to make a request that you see to
it that now in March or April, that we can finish this case off,
Your Lordship, because I want to get on. I've got big plans for
building factories here, from Germany and so on and I want to get
this case finished that I know where I stand, that I know how far I
can go, what I can do, what I can't do. That's point no. 1. Point
no. 2 is, 1 person is busy with the Deputy Minister of Correctional
Services plus the Head of Prisons plus the Permanent Secretary of
Correctional Services to start a rehabilitation fund to get a new
prison going here in Windhoek. And I just want to have this case
finished that I know where I stand and I can get on with my daily
work and try and get the (indistinct) situation in this country and
especially in Windhoek, fixed. But I mean, I've got the legal terms
now, (indistinct) the language and so on, that is now in plain
So you've got a lot of plans for the economic development now?
Which are in progress already, very much, ja. When I, this morning I
asked Mr Lottering to, he's got a photocopy already of it, for a
translation of what I think is about 10 or 12 pages, from German
into English for this water, water purification works, units for
(indistinct) households and the company in Germany has got money in
excess and they want to invest it here in Namibia and due to the
fact that they (indistinct) and approached me I'm very keen to start
this and on Monday morning I might have, at 12:00, I'm seeing the
Mayor of Windhoek, Dr Bjorn, I think, is it Von Finkenstein and have
a conversation with him and I just want to, that we finish this
case off because we're now the fifth year and I'm really
getting, I'm getting sick and tired of this case, Your Worship."
wonder that the Court remarked:
I suppose you are now taking over some of Dr Strowitzki's schemes in
developing the country."
I didn't need that "
Small made the following points in argument:
first false claim is that in Count 121 -Xander. It was wholly
completed by Accused 2. He and Accused 1 were clearly testing the
system to establish whether the fraud will be picked up and whether
Accused 2 would be able to provide Accused 1 with the cheque.
of the documents clearly were backdated. There can be no innocent
explanation for this. Examples are :
Exhibit 1.7 - Application to register by Autoland was found in the
filing system of Accused 1. It was dated 20/2/91 and 21/2/91 and
bears the signature of Accused 1 who was not in Namibia at that
stage. This document was most probably completed in February 1992.
Exhibits 60.8, 64.9 and 72.7: Applications to register as users of
diesel by Riedel, Riehs and Rusch signed by Accused 2 and dated
12/11/90. Claims later submitted for periods from April 1991.
under Count 3 8 indicate that 'Hartubon' completed the claim on
7/2/92. The claim was processed on 10/2/92 by Accused 2 and
'Hartubon' is on the same date informed that he is registered. This
is also the position in Counts 52, 56, 68 and 117, being the first
claims of other claimants.
normally send out a partly completed claim form to bona fide
claimants . He must have changed exhibits 14.1, 38.1, 52.1, 56.1,
60.1, 64.1, 68.1 and 117.1 if regard is had to exhibits 14.7, 38.7,
52.8, 56.7, 60.7, 64.7, 68.7 and 117.7 to fit this picture. These
are the first claims of Bockmuhl, Hartubon, Mittendorf, Muhl,
Riedel, Riehs, Ruppert and Stoermer.
was only allowed to claim for a period of 6 months prior to the
claim date. Older claims had to be approved by the Director. See
undisputed evidence of Kotze on p. 1443 - 1446. Accused 2 returned
older claims of valid claimants for this reason. See exhibit
Ml and M2. In all of the false claimants except Bockmuhl in
Count 14 and Steffens in Counts 106 and 107 he allowed some claims
older than 6 months. They are:
109.1 - 19
117.1 - 11
Zander 121.1 - Just
more than 6 months
. 6 During 9 months Accused 2 must have had handed the following
to Accused 1:
During January 1992 to April 1992 suppliers claims of 120 602.39,
211 034.83, 34 481.42 and 17 817.31 were checked and paid out. Other
employees worked with these claims as well as accused 2. This still
leave 173 957.06, 509 561.16, 372 656.80 and 264 217.29 which was
"checked", and paid out by Accused 2. In total he thus
checked and approved R2 078 022.65 alone.
The claims should have invoices attached to it to prove the
purchases. These were send back to claimants. It was sent
back to Accused 1 and filed in his filing system. There were
only invoices attached to some of the first 19 claims submitted.
They were 121, 28, 29, 122, 123, 30, 97, 98, 108, 109, 72, 73, 31,
74, 89, 90, 99, 110 and 124. All except 121, 89, 90 and 124 have
them attached. From November none of the claims have then been
attached. This means that Accused 2 "checked" and approved
numerous claims without proof of the purchases being attached.
D1-D19 (Subway Service Station) found in the filing system of
Accused 1 indicate that Accused 2 returned claims to Accused 1
which contained apparent fraudulent entries. No person acting bona
fide will do such a thing.
81.13 is a completed claim by Dr Rudiger found in the filing system
of Accused 1. It is clearly the next claim that would have followed
on Claim in Count 88. Although still with Accused 1 it bears the
signature of Accused 2 and the official stamp of the Ministry.
statement Accused 2 made to Van Vuuren where he attempted to
forward a similar defence as Accused 1 is unexplainable coming from
a man who acted bona fide and in fact lost him employ due to fraud
committed by Accused 1.
involvement in the partnership - Did not pay the R40 000.00,
receiving pay as director, etc indicate that he was
reimbursed for his duties indirectly.
It would be submitted that the Honourable Court should reject the
evidence of Accused 2 that he acted bona fide. He was at all times
fully aware of the Fraud being committed and assisted Accused 1. "
is considerable substance in each of these points.
counter arguments by Mr Botes are not convincing.
is here where the Court is reminded of the wise words quoted by
Davis A.J.A. in R
v de Villiers,
44 AD, 493 at 508 from Best on Evidence, 5th ed., 298:
two articles of circumstantial evidence - though each taken by
itself, weigh but as a feather - join them together and you will
find them pressing down on the delinquent with the weight of a
all the circumstances dealt with herein and on the probabilities, I
conclude that Bock is lying once more when he denies that he knew
that the claims were false. His denial is rejected as false beyond
all reasonable doubt. The only reasonable inference from all the
circumstances is that Bock knew of the falsity and was a
co-principal with a common purpose with Strowitzki.
Bock, you are found guilty of each and every one of the 13 0 charges
of fraud, involving an amount of N$2 461 958. -60.
BEHALF OF -THE STATE: ADV
D F SMALL
BEHALF OF ACCUSED NO. 1: Instructed by:
BEHALF OF ACCUSED NO. 2: Instructed by:
H GEIER Directorate of Legal Aid
L C BOTES P F Koep & Co