REPUBLIC
OF NAMIBIA
HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case
No: I 7/2004
DATE:
16 APRIL 2014
NOT
REPORTABLE
In
the matter:
NORED
ELECTRICITY (PTY)
LTD.............................................PLAINTIFF
And
LEMPIE
NDINELAGO ANGULA...........................................DEFENDANT
Neutral
citation: Nored
Electricity (Pty) Ltd v Angula (I
7-2004) [2014] NAHCMD 142 (16 April 2014)
Coram:
VAN NIEKERK J
Heard:
21,
22, 23, 24 February 2006; 3, 4 July 2006
Delivered:
16
April 2014
Flynote:
Action
for damages arising from alleged misappropriation of money over
certain period – Plaintiff’s case wholly dependent on
admissibility of computer print-outs – Plaintiff handed in
several computer print-outs during testimony of witness who also
deposed to affidavit in terms of section 2(1), (2), (4) and (5) of
Computer Evidence Act, 1985, (Act 32 of 1985) to authenticate the
computer print-outs in order to ensure their admissibility –
Evidence during cross-examination showing that witness only began
employment at plaintiff after period alleged by plaintiff –
Witness did not comply with peremptory provisions of section 2(3)(a)
of the Act, which provides that the ‘deponent to an
authenticating affidavit shall be some person who is qualified to
give the testimony it contains by reason of his knowledge and
experience of computers and of the particular system by which the
computer in question was operated at all relevant times’ -
Witness also testified that computer system had loopholes, no proper
control and security measures and was open to abuse – Witness
not in position to make authenticating affidavit – Computer
print-outs ruled inadmissible – Claim dismissed.
ORDER
The
plaintiff’s claim is dismissed with costs.
JUDGMENT
VAN
NIEKERK, J:
[1]
The plaintiff in this matter instituted action against the defendant,
a former employee, for payment of N$229 143-00 plus interest and
costs. After certain amendments were effected, the final amount
claimed during the trial was N$185 925.00. The amended cause of
action is based on the allegation that the plaintiff suffered damages
in the amount claimed after the defendant stole this amount during
the period 2 April 2002 to 23 January 2003. In further
particulars the plaintiff states that the defendant allegedly
received the money on behalf of the plaintiff, but failed to account
for it. The plaintiff also attached Annexure “A”,
which was later amended several times and which provides dates,
receipt numbers and amounts indicating how the total amount claimed
is made up.
[2]
The defendant, while admitting that she was an employee of the
plaintiff, denied in her plea that she stole any money. She
specifically denied that she received any money on behalf of the
plaintiff during the period 19 April 2002 to 28 May 2003 and that she
failed to account for any money received on 4 April 2003 and 16 April
2003.
[3]
The plaintiff called three witnesses. Two of them are Mr
Stefanus H Mulenga, the plaintiff’s senior accountant, and Mr
Josephat Negumbo, a service controller in the plaintiff’s
employ. As matters unfolded during the trial, it is clear that
it is not necessary to deal with their evidence in much detail.
It will suffice to give the following summary.
[4]
The plaintiff’s business was to sell electricity to consumers
by way of tokens. This was done via vending systems at the
plaintiff’s offices at various towns. The cashier’s
task was to sell pre-paid electricity to customers, to collect the
money paid over and to account for each and every transaction. There
were two kinds of pre-paid electricity systems. The one was
called STS. This system involved the printing of a voucher or
ticket on which certain numerical codes were printed. The
customer had to punch these codes into a meter at home to obtain
electricity to the value of the voucher. The other system was
magnetic and involved charging a card with credit. This card
would be entered into the meter at home and the meter would read the
card to determine how much electricity could be used. Each
transaction at the centre would be recorded by the computer system
which was programmed to produce a report of all the transactions of
each day which could be printed by the report printer. A
summary of all transactions could also be produced by the ticket
printer.
[5]
The finance and administration official at each vending office
supervised the cashier and also sometimes sold electricity when the
cashier was absent. It is common cause that the defendant in
this case was the finance and administration official at the
plaintiff’s vending centre in Ondangwa. She was the
supervisor of the cashier, Cecilia Kaheke. Both of them
regularly did transactions at that office.
[6]
The plaintiff also had some customers to whom electricity was
supplied on account which accounts were payable at the various
vending offices 30 days after consumption.
[7]
The vending offices had office hours from 7h30 to 16h30 every
weekday. The first and last half hour of every day was supposed
to be used to prepare for the day or to cash up the day’s
transactions and to prepare the money to be banked. Banking was
usually done the next day. Each cashier was supposed to start
the day with a zero balance. No provision was made for a cash
float. The offices were open for customers between 8h00 and 16h00.
The officers were closed for lunch from 13h00 to 14h00. At
13h00 the cashier would log off the first shift. At 14h00 the
cashier would log on to the second shift. Cash-up would be done
at the end of the day. The computer would allocate a number for
every cash-up. These numbers followed sequentially in ascending
order.
[8]
The cashier and any other operator, e.g. the finance and
administration officer, had to log on to the computer system by means
of a unique and secret password. If the finance and administration
official takes over from the cashier or decides to do the cash-up
duties at the end of the cashier’s shift, the cashier is
supposed to log out first and then the finance and administration
official is supposed to log in under his or her own password.
Sharing of passwords was considered irregular.
[9]
Every day the cashier had to fill in by hand a cash-up form
containing information about the day’s total amount of money
collected, the amount banked, the prepaid sales, the account payments
any new connections and all sundry income. This form, plus the
bank deposit slip, the summary printed by the ticket printer and
would be forwarded from each office to the plaintiff’s head
office in Ongwediva, where Mr Negumbo’s task was to check the
documents forwarded.
[10]
Mr Mulenga further explained that each cashier had to make sure at
the end of each day that a certain tape is switched on for the system
to make a backup of all the day’s transactions.
[11]
During May 2003 Mr Mulenga was involved in preparing the plaintiff’s
books for the financial year end in June. Some irregularities
were found. This included that a cashier would do more than one
cash-up during a particular day. This could be seen from
records provided by the various offices. The relevant cash-up
numbers were given to the information technology (“IT”)
staff for them to print the reports relating to those cash-ups.
Upon studying the backup records retrieved by the IT staff, certain
suspicious transactions were reflected. These also related to
the vending centre at which the defendant worked.
[12]
The plaintiff handed in certain computer print-outs of the backup
records relating to the period alleged in the amended particulars of
claim and in respect of the Ondangwa vending centre. This was
done during the testimony of the plaintiff’s third witness, Mr
Mervin Hilundwa, the plaintiff’s information technology (“IT”)
officer. Mr Hilundwa, in an attempt to comply with the
provisions of the Computer Evidence Act, 1985, (Act 32 of 1985),
(“the Act”) made an affidavit as required by section
2(1), (2), (4) and (5) of the Act to authenticate the computer
print-outs in order to ensure their admissibility. After the
affidavit was handed in as Exhibit “A”, his evidence was
led in full and a large number of computer print-outs were handed in.
[13]
However, during cross-examination by Mr Namandje on behalf of the
defendant, it became clear that Mr Hilundwa only commenced his
employment with the plaintiff during February 2003, which was after
the period under review in this case. He also stated in
evidence in chief that he learnt about the plaintiff’s computer
system by himself and that he acquainted himself with the operation
of the system by working there. What is more, Mr Hilundwa
testified that when he started working there, the computer system was
outdated, that it gave certain problems, inter alia, it had
some loopholes; that there were no proper control measures or
security measures in the system and that it was open to abuse. He
testified that the alleged misappropriation of money occurred during
the time before he started working on the system and that the system
was changed for the better after he started to work there.
[14]
He was confronted with the following statements in paragraph 5 and 6
of his affidavit:
‘5.
The
computer was correctly and completely supplied with data and
instructions appropriate to and sufficient for the purpose for which
the information recorded in the print-out was produced.
6.
At
all material times hereto the computer was unaffected in its
operation by any malfunction, interference, disturbance or
interruption which might have a bearing on such information or its
reliability.’
[15]
When it was pointed out to Mr Hilundwa that the relevant period to
which these statements referred was 2 April 2002 to 23 January 2003,
he conceded that he indeed only started working at the plaintiff
during 2003. When he was asked whether he could say whether
there were any disruptions in relation to the particular computer
before he started working for the plaintiff, he said he would not
know. He further confirmed that what he stated in paragraph 6
was not stated in reference to the period before he worked for the
plaintiff.
[16]
Mr Namandje submitted that Mr Hilundwa was clearly not in a
position to make the statements contained in paragraphs 5 and 6.
I agree with this submission. It further seems to me that Mr
Hilundwa did not comply with the peremptory provisions of section
2(3)(a) of the Act, which provides that ‘deponent to an
authenticating affidavit shall be some person who is qualified to
give the testimony it contains by reason of his knowledge and
experience of computers and of the particular system by which the
computer in question was operated at all relevant times.’
[17]
Mr Conradie for the plaintiff countered these submissions by
relying on the defendant’s evidence that she never encountered
any problems with the computer system apart from problems with a
printer. However, the matter cannot be approached on the basis
of the defendant’s evidence. As Mr Namandje
submitted, the computer print-outs are simply not admissible.
[18]
It is common cause that the whole of the plaintiff’s case is
dependent for proof on the admissibility of these print-outs.
Without these print-outs there is simply no case.
[19]
The result is that the plaintiff’s claim is dismissed with
costs.
K
van Niekerk
Judge
APPEARANCE
For
the plaintiff:..................................Mr
D Conradie of Conradie & Damaseb
For
the defendant:............................Mr
S Namandje of Sisa Namandje & Co
Nored Electricity (Pty) Ltd v Angula ( I 7/2004) [2014] NAHCMD 142 (16 April 2014);