- April 14, 2023
- |Concise Law Reports (CLR), Criminal Law And Procedure
Whereas the appellant was convicted of fraud and was sentenced; and whereas she appealed against both conviction and sentence, and the court dismissed the appeal, the High Court, in dismissing the appeal, considered the judgment of the Magistrate thus:
‘The judgment of the Magistrate
[32] Although it is not necessary for this court to deal with the ruling of the s 174 application, we need to refer to it because the magistrate referred to it in the final ruling on the merits. In the section 174 application, he summarized only the evidence of the first witness and did not consider the evidence of the second State witness. On perusal of the submission of the State, it is evident that they only relied on the evidence of Mr. Abraham Nakatimba in their opposition to the s 174 application and submitted that he should be treated as a single witness. This may be the reason for the magistrate`s rationale to focus only on that one witness in his summary of evidence.
[33] In closing arguments before judgment, the prosecution again submitted on the merits that the State’s evidence was that of a single witness. The magistrate delivered an ex tempore judgment and referred to his ratio decidendi in the 174 application concerning count 1, stating that he is of no different opinion, and convicted on count 2.
[34] We were at pains to decipher what the magistrate`s reasons were in the ‘final judgment’ as the typed record was riddled with ‘indistinct’ portions which made it difficult for the appeal court to comprehend the reasons. In addition, it is a terse judgment making it difficult to discern from the reasons how the magistrate resolved the issues of fact and law. It is alarming that the Magistrate did not even attempt to supplement his judgment after the notice of appeal was filed. He simply stated that he has no additional reasons to add. In view of the situation at hand, especially since this case was at the Regional Court level, to remind the magistrates of the rationales for the duty to give reasons:
a) it promotes public confidence in the administration of justice;
b) it is important to inform the losing party of the reasons for being unsuccessful in court;
c) it makes the right of appeal meaningful as it enables the appeal court to comprehend the path that the trial court has taken that led to its decision. Therefore, the duty to give reasons cannot be relegated at all.
[35] Notwithstanding, we were able to discern that the magistrate only considered the evidence of Mr. Nakatimba in convicting the appellant on both counts. This, in our view, is a misdirection, as there was another witness who testified. It is apposite to remind magistrates of the need to consider the whole conspectus of evidence, as was stated in S v Van der Meyden 1999 (1) SACR 447 W that:
‘A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond a reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true. The process of reasoning which is appropriate to the application of the proper test in any particular case will depend on the nature of the evidence that the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or acquit) must account for all the evidence. Some of it might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.’
[36] In addition, in the circumstances where the judgment of the magistrate cannot be properly deciphered because of illegible portions, it requires a re-evaluation of the evidence.
The court accordingly went on to re-evaluate the evidence, and found and/or concluded that:
‘[40] We turn to deal with the contention that the Magistrate erred by applying a wrong test, proof of a prima facie test as opposed to proof beyond reasonable doubt…
[41] It is evident that the extract from the judgment is almost meaningless in its indistinct portions, but it does not mean that the magistrate applied the wrong test or standard of proof at the end of the State’s case. One can discern that the Magistrate referred to his ruling in the 174 application. The ruling in the 174 application was clear and intelligible. In that ruling, he considered if the State proved prima facie that there was indeed a misrepresentation as one of the elements of fraud. He further alluded to the fact that if a prima facie case was proven requiring the appellant to testify and respond, failing then the prima facie case becomes conclusive proof.
[42] In our evaluation of the evidence, there was indeed a prima facie case, requiring the appellant to answer to. In the absence of her testimony, the magistrate was justified to convict. In relation to the misrepresentation, the appellant admitted that she has a better understanding of computers, which is indicative that she would have had little difficulty to manipulate the stock on the computers to inter alia misrepresent the physical stock on hand as well as that on the reports in the system. This misrepresentation was directed to Mr. Nakatimba, as representative of the post office. Though he found no irregularities on 31 March 2018, he definitely found anomalies and discovered the shortage of physical stock on 2 April 2018. All in all, the evidence has proven all the elements of the common law offence of fraud.
[43] A further ground of appeal raised was that the Magistrate erred by convicting the appellant on the second charge which is a contravention of s 6 read with ss 1, 7, 8, and 11 of the Prevention of Organised Crime Act 29 of 2004. It was alleged that this crime is not a competent verdict of fraud and not part of the instruction from the Prosecutor-General (the PG). Therefore, so it was argued, it was not a valid charge.
[44] Firstly, the prosecution did not rely on this charge as a competent verdict but requested the appellant to plead to it as a substantive charge. Secondly, there was no authority provided that it was irregular to charge an appellant on a charge for which there was no instruction from the PG. We reiterate what this court stated in Kahungu v S (HC-MD-CRI-APP-CAL-2021/00013) [2022] NAHCMD 593 (24 October 2022):
‘[9] The Prosecutor-General (PG) is appointed by the President to prosecute, subject to the provisions of the Constitution and to delegate to other officials, subject to his or her control and direction, authority to conduct criminal proceedings in any court (Article 88 of the Namibian Constitution; s 2 and s 3 of the Criminal Procedure Act 51 of 1977, as amended0). It is a notorious fact, substantiated by an affidavit from PG that she has delegated the authority to prosecute to Deputy Prosecutors-General, Control public prosecutors, and other prosecutors to institute and conduct prosecution in Namibia. It is therefore incumbent on any public prosecutor to decide on what charges an accused is to stand trial. In the instant matter, both the accused persons were summonsed to appear on a charge of assault common, and an admission of guilt amount of N$1000 was stipulated. It is not clear who compiled the summons but, be that as it may, it remained the prerogative of the public prosecutor to amend charges in accordance with the evidence at his or her disposal at the time of going to trial. Furthermore, no objection against the charge was raised at the commencement of the trial. This point in limine has no merit and stands to be dismissed.’
[45] We find in our evaluation of this charge that the admission by the appellant to Mr Nakatimba, in a letter that was handed up as exhibit ‘B’’ that she used the proceeds of the crime in order to settle debts of her late mother which she, as the only elder working child had to settle. Considering the conviction on count one, we find that she on diverse occasions acquired, used, and had in her possession property to wit; N$299 119. 21, knowing that it was proceeds of illegal activity, thereby laundering the money.