TOMMASI J:       

[1]      Accused 1 is charged with three counts of contravening section 43 (1) read with sections 32, 43(2), 43(3), 46 and 49 of the Anti-Corruption Act, 2003 (Act 8 of 2003) and Accused with two counts.  They were charged with fraud as the alternative to the first count and fraud and  theft as the alternative to the second count.

[2]      Both accused pleaded not guilty to the charges and submitted statements in terms of section 115 of the Criminal Procedure Act, 1977 (Act 51 of 1977).

[3]      The state led the evidence of several witnesses and produced documentary evidence.  After closing of the State’s case, both Accused brought an application for their discharge in terms of section 174 of the Criminal Procedure Act, 1977 (Act 51 of 1977). The State opposed the application.  Mr Mororua appearing for Accused 1 gave written submissions, Mr Mostert appearing for Accused 2 and Mr Sibeya for the state submitted oral arguments.

[4]      This court has a discretion to return a verdict of not guilty, if, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge.  The accepted approach by a court at this stage is to consider whether there is no evidence upon which a reasonable man (court), acting carefully, may convict. Counsel for the State reminded me of the guidelines as set out in S v NAKALE AND OTHERS 2006 (2) NR 455 (HC) p 466 F – Jwhich guidelines I have perused and considered and am in full agreement with. 

[5]      In this instance the application of the Accused for discharge on the main counts,challenges the legality of the charges proffered against them in terms of the provisions of the Anti-Corruption Act,  2003 (Act 8 of 2003).  For this reason it would be imperative to look at the charges fully, the relevant provisions of the Anti-Corruption Act, 2003 (Act 8 of 2003) and the evidence adduced before one considers the submissions made by counsel for the Defense and the State. 

[6]      The charges are:

Count 1 (Accused 1 & 2)

Contravening section 43(1), read with sections 32, 43(2), 43(3), 46 and 49 of the Anti- Corrpution Act, 2003 (Act 8 of 2003) - Corruptly using office or position for gratification rent a Motor vehicle N82959 W

In that on or about 01st day of March 2007 and at or near Windhoek in the district of Windhoek the accused, being public officers, to wit:  First accused, a Secretary (Permanent Secretary) to the National Assembly, Government of the Republic of Namibia and Second accused, an accountant (Acting Deputy Director for general services) to the National Assembly, Government of the Republic of Namibia, did wrongfully, unlawfully, directly or indirectly conspire or act in concert to use their offices or positions in a public body, namely: The National Assembly, Government of the Republic of Namibia to obtain a gratification for the first accused and/or the second accused’s benefit or that of another, to wit: to hire a motor vehicle with registration number N82959W from Budget Rent A Car for 15 days using the government of the Republic of Namibia Purchase order and Claim form number M0356090 at the government rental rate of a total amount of N$5 055.00 for the said 15 days, which rate is cheaper than the private rate which cost N$6 780.00 for 15 days, thus creating the impression that the said vehicle was hired by the National Assembly and/or Government of the Republic of Namibia and that the invoice would be settled by the National Assembly and/or Government of the Republic of Namibia, whereas in truth and in fact the accused persons when they hired the said vehicle well knew that it was not hired by or for official purposes of the Government of the Republic of Namibia, but that it was hired for private use by first accused and/or second accused and thus misrepresented to Budget Rent A Car that it was being hired by the Government and further the accused persons well knew that they had no authority or permission from the Public Service Commission and/or the Government of the Republic of Namibia to hire the said vehicle as stated above, and did then and there by means of false pretenses cause actual or potential prejudice to Budget Rent A Car and/or National Assembly and/or the Government of the Republic of Namibia to the amount of N$6780, thus the accused did abuse their offices or positions for gratification and contravened section 43 (1) of Act 8 of 2003.

Count 2 (Accused 1 & 2)

Contravening section 43(1), read with sections 32, 43(2), 43(3), 46 and 49 of the Anti- Corrpution Act, 2003 (Act 8 of 2003) - Corruptly using office or position for gratification rent a Motor vehicle DDS 937 FS

In that between 15th day of March and 24th day April 2007 and at or near Windhoek in the district of Windhoek the accused, being public officers, to wit: First accused, a Secretary (Permanent Secretary) to the National Assembly, Government of the Republic of Namibia and Second accused, an accountant (Acting Deputy Director for general services) to the National Assembly, Government of the Republic of Namibia, did wrongfully, unlawfully, directly or indirectly conspire or act in concert to use their offices or positions in a public body, namely: The National Assembly, Government of the Republic of Namibia to obtain a gratification for the first accused and/or the second accused’s benefit or that of another, to wit: to hire a motor vehicle with registration number DDS937 FS from Michael Goagoseb and /or Steven Ndengu and/or Budget Rent A Car for forty one (41) days for a total amount of N18 497.20 for private use by accused one and/or accused two, at the expense of or by paying for the said rental by using a cheque number 14612068 of the National Assembly and/or Government of the Republic of Namibia, thus creating the impression that he said motor vehicle was hired by the National Assembly and /or Government of the Republic of Namibia whereas in truth and in fact the accused well knew that it was not hired by or for official purposes of the National Assembly and/or the Government of the Republic of Namibia, but that it was hired for private use by the first accused and /or second accused and thus misrepresented to Michael Goagoseb and/or Steven Ndengu and/or Budget Rent A Car that it was being hired by the National Assembly and/or the Government and further that the accused persons had no authority or permission from the Public Service Commission and/or the Government of the Republic of Namibia to hire the said vehicle as stated above, and did then and there by mans of the said false pretences cause actual or potential prejudice to the National Assembly and /or the Government of the Republic of Namibia and /or Budget Rent A Car to the amount of N$18 497.20, thus the accused did abuse their offices or positions for gratification and contravened section 43 (1) of Act 8 of 2003.

Count 3 (Accused 1)

Contravening section 43(1) read with sections 32, 43(2), 46 and 49 of the Anti Corruption Act, 2003, (act 8 of 2003) – Corruptly using office or position for gratification.

In that on or about the 25th day of May 2007 and at or near Windhoek in the district of Windhoek the said accused being a public officer, to wit:  as Secretary (Permanent Secretary) to the National Assembly and thus a member on the management cadre of the public service of Namibia and a receiver of the motor vehicle allowance did wrongfully, unlawfully, directly or indirectly and corruptly use his office or position in a public body, the National Assembly of the Republic of Namibia to obtain a gratification for his own benefit or that of another person, to wit:  by driving a government motor vehicle with registration number GRN 343, belonging or assigned to Johannes Jacobs and /or Reinhardt Ricardo Stramis and/or Paulus Nathinge and/or the National Assembly and / the Government of the Republic of Namibia for his own personal gain/benefit or that of another without authority or permission to do so from the owner or the person lawfully in charge thereof and well knowing that being a receiver of a motor vehicle without the authority or permission, thus the accused did abuse his office or position for gratification thereby contravening section 43 (1) of Act 8 of 2003.

[7]      The relevant provisions of the Anti-Corruption Act:   Section 43 determines that:

(1) “A public officer commits an offence who, directly or indirectly, corruptly uses his or her office or position in a public body to obtain any gratification, whether for the benefit of himself or herself or any other person.”

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

(3)…….

[8]      Section 32 provides the following definitions:

"corruptly" means in contravention of or against the spirit of any law, provision, rule, procedure, process, system, policy, practice, directive, order or any other term or condition pertaining to-

(a)      any employment relationship;

(b)      any agreement; or

(c)      the performance of any function in whatever capacity;

"gratification" includes-

(a)      money or any gift, loan, fee, reward, commission, valuable security or property or interest in property of any description, whether movable or immovable;

(b)      any office, dignity, employment, contract of employment or services and any agreement to give employment or render services in any capacity;

(c)      any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part;

(d)      any valuable consideration or benefit of any kind, any discount, commission, rebate, bonus, deduction or percentage;

(e)      any forbearance to demand any money or money's worth or valuable thing;

(f)      any service or favour, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted, and including the exercise or the forbearance from the exercise of any right or any official power or duty;

(g)      any right or privilege;

(h)      any aid, vote, consent or influence, or any pretended aid, vote, consent or influence;

(i)      any offer, undertaking or promise, whether conditional or unconditional, of any gratification within the meaning of any of the preceding paragraphs.

[9]      Section 46 deals with Attempts and conspiracies

[10]    Section 49 determines that:

“A person convicted of an offence under any provision of this Chapter is liable to a fine not exceeding N$500 000 or to imprisonment for a term not exceeding 25 years, or to both such fine and such imprisonment.”

[11]    The evidence adduced by the Stateis summarized below.

[12]    Count 1:  Accused 1 rented a motor vehicle from Budget Rent A Car on 1 March 2007 by using a Government purchase order.  Accused 2 in the presence of Accused 1, instructed Ms Beukes to: phone different car rental places to secure a rental of a vehicle for 15 days; to write out a written purchase order of the National Assembly for that purpose; cancel the written purchase order when it is received from the supplier with the invoice and; to submit the invoice to Accused 1 for payment.  Mr Stramis who subsequently joined the parties, was requested by Ms Beukes to assist her with phoning car rental places.  Mr Stramis secured a quotation from Budget Rent A Car at government rates.  Ms Beukes completed the purchase order and Accused 1 signed it in his capacity as the Accounting Officer. 

[13]    Mr Stramis collected the vehicle and Accused 1 used the vehicle for both official  and private purposes for nine (9) days and delivered the vehicle to Budget Rent A Car on 10 March 2007 to their Hosea Kutako Branch (at the airport) 

[14]    On 24 April 2007 Accused 1 collected a copy of the tax invoice from Budget Rent a Car and tendered to pay it with his own cheque the same day.  This was not done. 

[15]    The original Purchase Order together with the invoice was found on the desk of Ms Silishebo by Mr Bekker, an investigator in the employ of the Anti-Corruption Commission, during June 2007.  She was responsible for processing computer generated purchase orders for payment.  She explained that she would have been unable to process the purchase order as it was written and it at the same time lacked the information required to process it.  She testified that she would have referred the purchase order to auxiliary services (Ms Beukes) for more information before the expense could be processed. 

[16]    The invoice was for payment by the National Assembly in the sum of N$4 379.54 calculated at a rate reserved for government.  It is undisputed that this amount was not paid and that it was written off as a bad debt by Budget Rent A Car.

[17]    Count 2:   On 15 March 2007 Accused 1 rented a vehicle from Budget Rent A Car at the Hosea Kutako Branch (at the airport) and used his own credit card to secure the rental until 31 March 2007. N$5000.00 was authorized on the credit card to this end on the same day.

[18]    On 31 March 2007 the vehicle was not returned and the rental was extended to 4 April 2007.  Another N$5000.00 was authorized on the credit card on this date.  The vehicle was not returned on 4 April 2007. 

[19]    After 30 days employees of Budget Rent A Car, after some telephonic discussion with Mr Stramis, ascertained that the credit card was lost.  After 41 days, on 24 April 2007, the vehicle was returned to the Windhoek branch of Rent A Car after further telephonic discussions took place between the staff of budget Rent A Car and Mr Stramis. 

[20]    Accused 1 was presented with an invoice for this rental as well as the first rental on 24 April 2007 and similarly undertook to settle it with his own cheque. 

[21]    On the same day, 24 April 2007, Accused 2 requested Ms Diergaardt to process the payment for this invoice by National Assembly and informed her that Accused 1 would refund National Assembly.  A general expenses form prepared by Accused 2, was handed to Ms Diergaardt to process.   Accused 2 signed as claimant and Accused 1 signed as the Accounting Officer. The procedure used, according to Ms Diergaardt was somewhat irregular and unusual. 

[22]    On 25 April 2007 a cheque was issued in favour of Budget Rent A Car in the sum of N$18 497.20  It is not disputed that accused paid the amount of N$18 497.20 on 12 June 2007 after the date of his arrest on these charges.

[23]    Count 3: Accused 1, who was the beneficiary of a car allowance from Government, was found in possession or using a government vehicle on 25 May 2007.  The evidence of Mr Nathinge was that the trip authority was in the vehicle and if it had not been for this fact, he would have completed the trip authority by inserting the details of Accused 1, as he was instructed to do so. The state produced the Staff Rules pertaining to the Motor Vehicle Scheme for Management Cadre and Professional Staff.

[24]    The application for discharge of Accused 1 raised the following issues:

1. Accused 1 has placed in dispute inter aliathat: he took a decision to obtain a benefit for himself; that he did not require permission from the Public Service Commission to rent the vehicle in count 1 and 2; denied conspiracy with accused 2 and that he had the required mens rea corrupt a hitherto unknown corruptee or receive the as yet undefined benefit.

2. Accused 1 specifically advanced from the outset of the trial as a basis of his defense,the fact that the conduct with which the he was charged or that the transgressions alleged against him are non-penal administrative acts not expressly declared crimes by the Anti-Corruption Act, 2003 (Act 2003) and for which no punishment has been prescribed for imposition by the Courts in the event of contravention thereof;

3. The conduct the accused was charged with does not constitute legal or criminal norms prescribing criminalization or penal sanctions for their contravention.

4. That the prosecution on the basis alleged constitutes a contravention of the Nullum sine legeprinciple (literally translated – “no crime without a law”)

[25]    Mr Mostert supported the argument of Mr Murorua and added that where the contravention of the staff rule is relied on,the rule must be clear and it should constitute a legal certainty.

[26]    The state argued that they have made out a prima faciecase for the conviction in terms of section 43 (1) in that there was sufficient evidence adduced that:

1.       accused are public officials.

2.       They Acted with common purpose to secure a benefit for Accused 1 i.e the renting of the two vehicles;

3.       Accused 1 and 2 contravened, Acts, (State Finance Act, the Public Service Act, Tender Board Act) Treasury instructions, standing procedure when they:

(i)       used a Government purchase order for the first rental referred to in count 1;

(ii)      Processed a cheque of the National Assembly for payment of the private car rental referred to in count 2

Without the necessary approval or authorization of the Prime Minister (recommended by the Public Service Commisison) or the Speaker; ie Accused 1 contravened the Staff Rules pertaining to the Motor Car Scheme for Management Cadre and Professional Staff when he acted as alleged in count 3.

Having led evidence of the contraventions referred to above,the State has proven that the accused acted “corruptly”;

Or

That, the Accused having made a decision in concert, the presumption contained in section 43 (2) should be applied as “sufficient evidence that the public officer has corruptly used his or her office or position in the public body in order to obtain a gratification.”

4.       In terms of the third count Accused 1 contravened a staff rule relating to motor vehicle and a contravention hereof is a contravention of the Public Service Ac, 1995 (Act 13 of 1995) and thus acted “corruptly” as per the definition in terms of section 32 of the Anti Corruption Act, 2003 (Act 8 or 2003)

5.       That gratification was proved in the first count due to the fact that Government was committed to pay (money) for the rental in terms of the Purchase Order;  Accused 1  used the vehicle for his own benefit; has proven that the payment bGovernment for second rental was, at the very least a loan government and;  Accused 1 had the benefit of using the government vehicle when he was receiving a motor vehicle allowance.

[27]    In a nutshell the Counsel for the State’s submitted that sufficient evidence of all the necessary allegation required to be proven in terms of section 43(1), was adduced upon which a reasonable court, acting carefully, will convict the accused of a contravention of section 43 (1).

[28]    The Question then is - does the conduct of the accused  constitute the crime that they were charged with  and is the state correct when it states that they have covered all the allegations required to be proven in terms of the relevant provisions of the Anti-Corruption Act, 2003 (Act 8 of 2003)?

[29]    The forerunners of the Anti-act are the Ordinance 2 of 1928, and the Prevention of Corruption Amendment Act, 1985 (Act 21 of 1985) which Act substituted section 2 of the above ordinance.

[30]    Section 1 of Ordinance 2 of 1928 stipulates the definition of the expression “agent”, “consideration”and “principal”

[31]    Section 2 (a) reads as follow:

‘If any agent corruptly accepts or obtains, or agrees to accept, or attempts to obtain from any person for himself, or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do, or for having after the passing of this Ordinance done, or forborne to do any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavor to any person in relation to his principal’s affairs or business, or

(b) If any person corruptly gives or agrees to give, …. to any agent….

(c)….

He shall be guilty of corruption and be liable on conviction to imprisonment …….. (my emphasis)

[32]    The prevention of Corruption Amendment Act, 1985 (Act 21 of 1985), section 2 of the above ordinance.  The objective of this act was to amend the Prevention of Corruption Ordinance, 1928, so as to make different provision for penalties for contravention of the said ordinance.  It reads as follow:

Any person who –

a)     In the case of an agent, corruptly accepts or obtains or agrees to accept or attempts to obtain from any person, either for himself or for any other person any gift or consideration as an inducement or reward for doing or omitting to do or fro having done or omitted to do any act in relation to his principal’s affairs or business; or

Corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward …..

….

Shall be guilty of an offence and liable on conviction to the penalties which may by law be imposed for the crime of bribery.” (my emphasis)

[33]    The South African Counterpart of the Anti-Corruption Act, the Prevention And Combating Of Corrupt Activities Act 12 Of 2004, shares more or less the same objectives i.e to prevent and combat corruption and the comparative provision reads as follow:

(1) Any-

(a)      public officer who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or

(b)      person who, directly or indirectly, gives or agrees or offers to give any gratification to a public officer, whether for the benefit of that public officer or for the benefit of another person, (my emphasis)

[34]    If one considers the fact that the defense is attacking the legality, not per se of section 43 (1) but that the State aver that the actions of the accused should resort under the umbrella of this provision.   The fact that state relies on the actions of the accused, on their own acting in concert, to prove the commission of this offence, created an uncertainty around the interpretation of  section 43 (1) and the definitions in section 32 of the Anti-Corruption Act.

[35]    The uncertainty arises from the question whether a public officer can be charged with corruption when he/she, within his employment relationship, contravenes an act, rule, etc acting on his/her own (or as in this case in concert with another) secure a benefit for himself or for another person within that employment relationship i.e with no other person involved offering gratification to persuade or influence him/her to do so.    Surely a person acting on his own could be held accountable for either misconduct or any other crime in his own capacity that does not need the interaction with another person to constitute a crime. 

[36]    The offending “act” is receiving a benefit (“from any other person” - Ordinance 2 of 1928; the prevention of Corruption Amendment Act, (Act 21 of 1985) & Prevention and Combating Of Corrupt Activities Act 12 Of 2004 (RSA))  The Anti-Corruption Act, 2003 (Act 8 of 2003) does not carry a similar provision. It does not clearly stipulate that the source of the gratification should be from any other person.  

[37]    The historical crime, bribery, was found too narrow in its application and it needed to be expanded.  In “South African Criminal Law and Procedure, Milton & Cowling , Volume III, Second Edition, D3 page 1 the following is said:

“In modern law bribery is not necessarily confined to the giving of pecuniary rewards, and is conceived as involving the giving or offering of any sort of benefit that will induce the corruptee to act corruptly.  Morally, both parties to an act of corruption are blameworthy and by long tradition the criminal law punishes both he who corrupts another (hereinafter referred to as the “corruptor”) and he who allows himself to be corrupted (hereinafter referred to as the “corruptee’) “

[38]    It is clear, from the historical perspective, that provision was made for criminalizing both the actions of the corruptee and the corruptor.

[39]    The principle of legality has been set out in Criminal Law, CR Snyman, Fourth Edition, page 39 as follow:

An accused may not be found guilty of a crime and sentenced unless the type of conduct with which he is charged;

a)     Has been recognized by the law as a crime, (ius acceptum )

In clear terms (ius certum)

Before the conduct took place (ius praevium )

Without the court having to stretch the meaning of the words and concepts in the definition to bring the particular conduct of the accused within the compass of the definition and (ius strictum)After the imposition of punishment also complies with the four principles set out immediately above (nulla poena)

[4]      Given the history of the offence in Namibia and the legality principle, I conclude that the provisions of section 43 (1) should be interpreted strictly.  The narrow interpretation thereof can only be that this provision relates to the corruptee and the corresponding provision for the corruptor is contained in section 38 of the Anti-Corruption Act, 2003 (Act 8 of 2003).

[41]    It follows that the State needed to prove that gratification was  obtained from another person i.e that the public officer who allows himself to be corrupted (the ‘corruptee) was required to be corrupted by a corruptor.  The evidence adduced does not support the commission of the offence since there was no corruptor.

[42]    The legislator could not have intended for the courts to usurp the State’ s function to discipline its staff unless it falls within the framework of the criminal law, (be it a common law or statutory offence).  If that had been he intention surely  it would contain a clear provision to criminalize misconduct.  Those rules would then have to comply with the legality principle so that “people may find out, with reasonable ease and in advance, how to behave in order to avoid committing a crime” (Criminal Law, CR Snyman, Fourth Edition page 41)

[43]    The alternative counts fall within the scope of criminal law and I am satisfied that evidence has been adduced by the state upon which a reasonable court, acting carefully, may convict.

[44]    Having reached this conclusion it becomes abundantly clear that the state has not succeeded to adduce evidence that the accused committed the offence referred to in the main counts of contravening section 43 (1) of the Anti- Corruption Act, 2003 (Act 8 of 2003)

[45]    In the circumstances the application for a discharge in terms of section 174 of the Criminal Procedure Act, 1977 (Act 51 of 1977) succeeds in terms of the main counts 1, 2 and 3 and both accused is found not guilty and discharged on those counts.

[46]    In terms of the alternative (s) to count 1, 2 and 3 the application for discharge is refused.

______________________

TOMMASI J

Appearance for the parties:

For the State:                  Mr Konga

                                       Office of the Prosecutor-General

For accused 1:                  Mr L Murorua

                                       Murorua & Associates

For accused 2:                  Mr Mostert

                                       ????????