REPUBLIC OF NAMIBIA NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKSENTENCE

CASE NO: CC 14/2012 CASE NO: CC 15/2012

In the matter between:

THE STATE

vs

DAWID JOHANNES KOEN ACCUSED

Neutral citation: S v Koen (CC 14/2012 CC 15/2012) NAHCMD 216 (15 July

2014)

Coram: SIBOLEKA J

Heard on: 12, 13, 14, 15 May 2014

Delivered on: 15 July 2014

SIBOLEKA J

[1] The accused was charged on the following counts:

1. ARSON

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2. DEFEATING OR OBSTRUCTING THE COURSE OF JUSTICE

3. FRAUD COUNTS 1–112 FRAUD

First Alternative to FRAUD – Counts 1–112: THEFT – GENERAL

DEFICIENCY.

Second Alternative to FRAUD – Counts 1–112: THEFT

1. ARSON

That Dawid Johannes Koen is guilty of the crime of Arson.

In that upon or about 17 August 2009, and at/or near the Municipality of

Outjo’s offices in the district of Outjo the said Dawid Jonannes Koen did

wrongfully, unlawfully and intentionally set fire to and thereby damage by

fire, a certain building, being an immovable and the property of Outjo

Municipality with the intent to;

a. Injure in its property the Municipality of Outjo and/or Josef Abel Urib

and/or The Board of Directors of Outjo Municipality and/or any other

lawful representative of Outjo Municipality and/or

b. To conceal and/or destroy the evidence of theft of funds belonging to

the Outjo Municipality and/or his fraudulent activities against the

Municipality of Outjo and/or Josef Abel Urib and/or The Board of

Directors of Outjo Municipality and/or any other lawful representative of

Outjo Municipality.

2. DEFEATING OR OBSTRUCTING THE COURSE OF JUSTICE

That Dawid Johannes Koen is guilty of the crime of Defeating or

Obstructing or attempting to Defeat or Obstruct the Course of Justice.

In that the said Dawid Johannes Koen did unlawfully and with the intent to

defeat or obstruct the course of justice:

a. On or about 17 August 2009, and at/or near the Municipality of Outjo’s

offices in the district of Outjo, set on fire the building of the Municipality

of Outjo wherein all the accounting and financial records and all other

documents, stationery, laptops and computers pertinent to the day to

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day running of the Municipality of Outjo were kept.

Whereas when the accused perpetrated this act he knew or foresaw that:

b. His conduct will frustrate and/or interfere with police investigations into

his alleged fraudulent and/or thievish activities against the Municipality

of Outjo and/or;

c. His conduct will conceal and/or destroy evidence indicating that he

committed the offences of fraud and/or theft and/or

d. His conduct will/may protect him from being prosecuted for fraud

and/or theft.

Wherefore the accused is guilty of the crime of defeating or obstructing the

course of justice.

3. FRAUD Counts 1–112

WHEREAS

The accused, Dawid Johannes Koen, was at all material and relevant

times employed by the Municipality of Outjo as a Strategic Executive

Officer (SEO). He was also referred to as the Treasurer. He was the Chief

Financial Officer of the Municipality of Outjo and he was, among other

duties;

a. Responsible for planning, directing, controlling and administering the

financial affairs of the Municipality of Outjo and carrying out all the

Statutory responsibilities and duties as the Treasurer of the

Municipality;

b. To serve as a policy advisor to the Chief Executive Officer (CEO) for

fiscal, financial, informational and accounting matters.

c. To develop, implement control and maintain policies and strategies

with regard to the financial affairs of the Municipality and

d. To manage the Treasury Department in its statutory, operational,

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custodial and advisory responsibilities.

AND WHEREAS the accused person did, between the period extending from

5 March 2007 to 17 August 2009 and at/or near the Municipality of Outjo’s

offices in the district of Outjo; wrongfully, unlawfully, falsely and with intent to

defraud give out and pretend to the Municipality of Outjo and/or Josef Abel

Urib and/or The Board of Directors of Outjo Municipality and/or any other

lawful representative of Outjo Municipality that:

a. On the dates listed under Column A of Schedules 1; 2; 3 and 4, the

Municipality of Outjo collected as revenue in cash amounts listed under

Column E of Schedules 1; 2; 3 and Column B of Schedule 4, and also in

cheque form as listed under Column D of Schedules 1; 2 and 3 and under

Column C of Schedule 4, and that these amounts had been duly

deposited into the Municipality of Outjo’s bank account with Standard

Bank on the dates listed in Column G of the Schedules 1; 2 and 3 and/or;

b. The accused was keeping good accounting records of all the transactions

at the Municipality of Outjo and he was working to the best interests of his

employers.

c. All the revenue due to and collected on behalf of the Municipality of Outjo

from the residents and other beneficiaries of services from the Municipality

of Outjo as payment for rates, water charges, refuse removal, sewerage

services, electricity and other incidental services, levies and charges was

being accounted for in terms of the laid down procedures of the

Municipality of Outjo.

And did then and there by means of the said false pretences, induce the

Municipality of Outjo and/or Josef Abel Urib and/or The Board of Directors of

Outjo Municipality and/or any other lawful representative of Outjo Municipality

to the actual or potential loss or prejudice to the Municipality of Outjo and/or

Josef Abel Urib and/or the Board of Directors of Outjo Municipality and/or any

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other lawful representative of Outjo Municipality to:

d. Believe and accept the above mentioned misrepresentations and/or any

part thereof and/or;

e. Believe that all the monies due to and collected on behalf of the

Municipality of Outjo from the residents and other beneficiaries of services

from the Municipality of Outjo as payment for rates, water charges, refuse

removal, sewerage services, electricity and other incidental services,

levies and charges was being accounted for and/or was being deposited

into the Standard Bank account of Outjo Municipality for the sole utilization

by Outjo Municipality.

f. Accept and trust that the accused was discharging his assigned duties in

the best interests of the Municipality of Outjo.

Whereas in truth and in fact the accused, when he so gave out and pretended

as previously mentioned he well knew that:

g. The cash receipts listed under Columns E of Schedules 1; 2; 3 and

Column G of Schedule 4, transacted on the dates indicated in Column A

of all the Schedules were, in actual fact not deposited into the Standard

Bank account of the Municipality of Outjo and/or were not the exact figures

so deposited and/or were not a true reflection of the banking transactions

conducted by the accused on behalf of the Municipality of Outjo at the

Standard Bank and/or;

h. The accused had not deposited money collected as cash into the

Standard Bank account of the Municipality of Outjo but had only deposited

the cheques into the said account and/or;

i. He was not entitled to amounts listed under Column E of Schedules 1; 2; 3

and Column G of Schedule 4, totaling in the sum of N$1 742 208.83, but

nevertheless proceeded to appropriate the same and/or;

j. The representations aforementioned in paragraphs (a), (b) and (c), above,

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or any part thereof were false and/or incorrect and/or;

k. He had no lawful right to appropriate all the monies previously mentioned

and/or to dispose of them as he did without the consent of the Municipality

of Outjo and/or Josef Abel Urib and/or The Board of Directors of Outjo

Municipality and/or any other lawful representative of Outjo Municipality to

the actual or potential loss or prejudice to the Municipality of Outjo and/or

Josef Abel Urib and/or The Board of Directors of Outjo Municipality and/or

any other lawful representative of Outjo Municipality.

And thus, the accused did commit the crime of FRAUD.

First Alternative to FRAUD Counts 1–112: Theft – General Deficiency as read

with sections 100 and 243 of the Criminal Procedure Act No. 51 of 1977.

That the accused Dawid Johannes Koen, is guilty of the crime of Theft of

General Deficiency.

In that whereas at all relevant and material times, the accused Dawid

Johannes Koen, was employed at the Municipality of Outjo as a Strategic

Executive Officer (SEO). He was also referred to as the Treasurer. He was

the Chief Financial Officer of the Municipality of Outjo, the accused was as

such a servant or agent of the said Municipality of Outjo and was entrusted

with the custody and care of varying amounts of cash collected on behalf of

and due to the Municipality of Outjo from the residents and other beneficiaries

of services from the Municipality of Outjo as payment for rates, water

charges, refuse removal, sewerage services, electricity and other incidental

and related services, levies and charges which cash had come into his

possession and/or control and which cash belonged to his said employer. The

accused person did, during the period extending from 5 March 2007 to 17

August 2009 and at or near the Municipality of Outjo’s offices in the district of

Outjo, wrongfully, unlawfully and intentionally steal some cash thereby

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creating a general deficiency of N$1 742 208,81, the property of or in the

lawful possession of the Municipality of Outjo and/or Josef Abel Urib and/or

The Board of Directors of Outjo Municipality and/or any other lawful

representative of Outjo Municipality.

Second Alternative to FRAUD Counts 1-112: THEFT

That the accused Dawid Johannes Koen, is guilty of the crime of Theft.

In that upon or about the period extending from 3 May 2007 to 17 August

2009 and at/or near the Municipality of Outjo’s offices in the district of Outjo,

the said accused did wrongfully, unlawfully and intentionally steal the

amounts listed under Column E of Schedules 1; 2; 3 and Column G of

Schedule 4, on or about the dates indicated in Column A of all the Schedules

totaling the sum of N$ 1 742 208,81, the property of or in the lawful

possession of the Municipality of Outjo and/or Josef Abel Urib and/or The

Board of Directors of Outjo Municipality and/or any other lawful represen-

tative of Outjo Municipality.

_____________________________________________________________

THE SUMMARY OF SUBSTANTIAL FACTS IN TERMS OF SECTION 144

(3)(a) OF THE CRIMAL PROCEDURE ACT NO 51 OF 1977 ARE AS

FOLLOWS:

____________________________________________________________

The accused, Dawid Johannes Koen, was at all material and relevant

times employed by the Municipality of Outjo as a Strategic Executive

Officer (SEO). He was also referred to as the Treasurer. He was the Chief

Financial Officer of the Municipality of Outjo and he was, among other

duties;

a. Responsible for the planning, directing, controlling and administering of

the financial affairs of the Municipality of Outjo and carrying out of all

the Statutory responsibilities and duties as the Treasurer of the

Municipality;

b. To serve as a policy advisor to the Chief Executive Officer (CEO) for

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fiscal, financial, informational and accounting matters;

c. To develop, implement control and maintain policies and strategies

with regard to the financial affairs of the Municipality and

d. To manage the Treasury Department in its statutory, operational,

custodial; and advisory responsibilities.

During the period preceding the burning down of the administrative

building of the Municipality of Outjo it had emerged that the accused was

not performing his duties as per his mandate resulting in immense

pressure from the Office of the Auditor-General and the Parliamentary

Standing Committee on public Accounts. The accused had not submitted

financial statements for the years 2005/2006; 2006/2007 and 2007/2008.

Further the bank reconciliation statements were in arrears. His

performance was the subject of the Management Committee meeting

which was held on 25 March 2009. He was thereafter handed a warning

letter by the Chief Executive Officer wherein he was given parameters

within which to perform his duties.

During the months of July and August 2009 the Council was having its

annual shut-down of the financial year. The accused had not yet submitted

his financial statements as required. Further the Auditor-General had

notified the management of the Municipality that an audit team would visit

the Municipality to conduct an investigation on 17 August 2009. However,

on 17 August 2009 and during the early hours of the morning, before

employees had reported for duty and before the offices had been opened

for business, the accused’s car was seen parked outside the Municipality

Building’s Offices. Shortly before flames of fire were seen engulfing the

building, the accused was seen dashing into his car and driving off at high

speed. When the audit team from the Office of the Auditor-General arrived

they found the building on fire. The accused had disappeared only to hand

himself over to the police later during the afternoon of the same day.

9

The burning down of the finance/administration block of the Municipality of

Outjo resulted in the destruction of most financial records, furniture and

equipment; the replacement value of which was quite astronomical.

Subsequently an investigation was conducted into the way the accused

had conducted his duties. It emerged that the accused had embezzled a

substantial amount from the Municipality.

The Municipality of Outjo, among others, operated the following services:

Water supply to the town

Administering plot taxes

Garbage/refuse removal

Sanitation and

Up-keeping of infrastructure of the town.

The residents and other beneficiaries of these services paid the

Municipality for these services. The revenue was paid to the cashiers. The

Municipality had in place an accounting system called Finstel Programme.

At the end of the day the cashiers will cash up on the computer and the

accused was supposed to verify in the presence of the cashier that the

cash at hand tallied with the computer print out. Thereafter the cashiers or

others of accused’s subordinates were supposed to take the cash and

cheques for banking the following day. However, the accused (in all

instances when cash was not deposited and unaccounted for) did the

banking personally. In the process he only deposited cheques into the

Municipality’s Standard Bank account and he appropriated the cash.

Using this method he defrauded and/or stole from the Municipality of Outjo

of the total sum of N$1 742 208,83. He had no lawful right to act in the

manner he did.

[2] The accused drew up a statement in terms of section 112(2) as well as

section 115 of the Criminal Procedure Act, Act 51 of 1977. The said statement

10

was read into the record by his counsel Mr Wessels and the accused confirmed

it.

[2.1] The plea statement is as follows:

________________________________________________________________

I, the undersigned,

DAWID JOHANNES KOEN

wish to state as follows:

1. I am the accused in this matter facing charges of:

i. ARSON

ii. DEFEATING OR OBSTRUCTING THE COURSE OF JUSTICE

iii. FRAUD (112 COUNTS OF FRAUD)

First alternative to FRAUD (COUNT III) – THEFT – GENERAL

DEFICIENCY (112 COUNTS)

Second alternative to FRAUD (COUNT 111 – THEFT – (112

COUNTS)

2. I plead guilty to Count 1 and 2 but NOT GUILTY to all charges in respect

of FRAUD (COUNT III). I also plead NOT GUILTY to the first alternative to

FRAUD i.e. THEFT – GENERAL DEFICIENCY.

3. I, however, plead guilty to some of the charges in respect of the second

alternative to the main count in Count III i.e. THEFT. In respect of my plea

pertaining to the second alternative to Count III, I plead as follows:

3.1 Guilty in respect of the following charges: Count 1–10 // Counts 12-

26 // Count 28 // Counts 30–33 // Counts 35–45 // Counts 47–50 //

Count 54 // Counts 61–62 // Count 66 // Counts 68–69 // Count 71 //

Counts 74–76 // Count 82 // Count 84 // Count 89 // Counts 96–97

(totaling an amount of N$1 190 979,80).

3.2 Not guilty to Count 3 (Main Count) as well as both alternative counts in

respect of the following charges: Count 11 // Count 27 // Count 29 //

Count 34 // Count 46 // Counts 51–53 // Count 55 – 60 // Counts 63–

65 // Count 67 // Count 70 // Counts 72–73 // Counts77 – 81 // Count

11

83 // Counts 85–88 // Counts 90–95 // Counts 98–112 (totaling an

amount of N$551 229,00).

4. I tender this plea freely and voluntarily and am fully aware of my rights and

hereby state as follows:

4.1 I confirm that I am fully aware of the allegations in all the charges

preferred against me.

4.2 I further confirm that I am fully aware of and have been informed by

my counsel of my rights, namely:

4.2.1 That I am presumed innocent until proven guilty beyond

reasonable doubt.

4.2.2 That I cannot be compelled to give self-incriminating evidence

and that if I so wish can remain silent and do not have to testify

during these proceedings.

5. I hereby plead guilty to the counts as set out in paragraph 3.1 supra.

5.1 I hereby confirm that I plead guilty of my own free will. Nobody has

influenced me in any manner whatsoever to plead guilty, nor was I

made any promises.

5.2 I further confirm that I am fully aware of the consequences of this plea,

namely that I can be convicted on the charges to which I have pleaded

guilty, without the State having to call witnesses or tender any

evidence to the said charge against me.

6. In amplification of my plea in respect of Count 1 (ARSON) I admit the

following in terms of Section 112(2) of the Criminal Procedure Act, Act 51

of 1977.

6.1 I admit that I was in Outjo at the offices of the Municipality of Outjo in

the district of Outjo on 17 August 2009.

6.2 I admit that I wrongfully, unlawfully and intentionally set fire to a certain

building, being an immovable property; the property of Outjo Municipa-

lity.

6.3 I admit that I set on fire the abovementioned permanent

structure/immovable property with the intend to conceal and/or destroy

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the evidence of theft of funds belonging to the Outjo Municipality

and/or Josef Abel Urib and/or the Board of Directors of Outjo

Municipality and/or any other lawful representative of Outjo

Municipality (see my pleas of guilty to the second alternative to the

third Count – Fraud – i.e. Theft).

6.4 I admit that, at the time of the commission of the offence of Arson, my

actions were wrongful and unlawful and I knew that if caught I could be

arrested, charged, convicted and sentenced.

7. In amplification of my plea in respect of Count II – DEFEATING OR

OBSTRUCTING THE COURSE OF JUSTICE – I admit the following:

7.1 I admit that I was in Outjo at the offices of the Municipality of Outjo in

the district of Outjo on 17 August 2009.

7.2 I admit that I wrongfully, unlawfully and intentionally set on fire a

building, to wit the municipality building of Outjo wherein all accounting

and financial records and other documents, stationary, laptops and

computers, pertinent to the day-to-day running of the Municipality of

Outjo were kept.

7.3 I admit that when I so perpetrated the act of Arson, I knew and/or

foresaw that my conduct will frustrate and/or interfere with the police

investigations into my alleged thievish activities against the Munici-

pality of Outjo and/or destroy evidence indicating that I committed

offences of theft and I knew that my conduct might protect me from

being prosecuted on charges of theft (see my pleas of guilty to the

second alternative to the third Count – Fraud – i.e. THEFT).

7.4 I admit that my actions were wrongful and unlawful and with the intent

to DEFEAT AND/OR OBSTRUCT THE COURSE OF JUSTICE. I

knew that I was committing the crime of DEFEATING OR OBSTRUC-

TING THE COURSE OF JUSTICE and knew that if caught I could be

arrested, charged and convicted.

8. I confirm my plea of not guilty on all Counts of FRAUD (Counts 1-112) and

the State will be put to the proof of the allegations.

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9. I also plead not guilty to the first alternative charge to Count III; to wit:

THEFT – GENERAL DEFICIENCY (all Counts 1-112) and the State will be

put to the proof of the allegations.

10. In amplification of my plea of guilty to some of the charges in respect of

the second alternative charge to Fraud; to wit: THEFT, I wish to state the

following:

10.1 I admit that I was in Outjo in the district of Outjo during the period of

3 May 2006 to 17 August 2009.

10.2 I admit that I was, at all material and relevant times, employed at

the Municipality of Outjo as their Strategic Executive Officer (SEO).

I was also referred to as the treasurer and I was the Chief Financial

Officer of the Municipality of Outjo.

10.3 I admit that I during the period referred to supra and on the dates

referred to in Schedule 1, 2 and 3, I wrongfully and unlawfully stole

the amounts as per Schedule 1, 2 and 3, Column E.

10.4 I, however, only plead guilty in respect of the third Count; second

alternative thereto – Theft – in respect of the following incidents as

per Schedule 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18,

19, 20, 21, 22, 23, 24, 25, 26, 28, 30, 31, 32, 33, 35, 36, 37, 38, 39,

40, 41, 42, 43, 44, 45, 47, 48, 49, 50, 54, 61, 62, 66, 68, 69, 71, 74,

75, 76, 82, 84, 89, 96 and 97.

10.5 I admit that the sum amount/total amount in respect of the amounts

I wrongfully and unlawfully stole amount to N$1 190 979,80.

10.6 I admit that I knew that theft is a criminal offence and on each and

every occasion that I stole money, as referred to supra, I knew that

if discovered, I could be arrested, charged and sentenced.

11. I plead not guilty to the following Counts in respect of Count 3; the

second alternative:

11.1 Not guilty to Count 3 (Main Count) as well as both alternative

counts in respect of the following charges: Count 11 // Count

27 // Count 29 // Count 34 // Count 46 // Counts 51–53 //

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Counts 55–60 // Counts 63–65 // Count 67 // Count 70 //

Counts 72–73 // Counts77–81 // Count 83 // Counts 85–88 //

Counts 90–95 // Counts 98–112 (totaling an amount of

N$551 229.00).

11.2 The State will be put to the proof of the allegations therein.

[2] It is now incumbent on me to consider an appropriate sentence for you. In

doing that I am alive to the three factors which have become known as the triad,

that is, your personal circumstances, the crime itself and the interests of society

(See S v Zinn 1969 (2) SA 537 (A) and S v Rabie 1975 (4) SA 885 (A). Closely

connected to the above factors is the purpose of punishment which entails the

elements of retribution, prevention, deterrence and reformation. Depending on

the circumstances of a particular matter, one factor may receive more emphasis

than the other. The aim would nonetheless still remain the same, and that is to

impose a balanced and well considered sentence.

[3] I will now look at the personal circumstances of the accused, which he

testified to under oath.

[3.1] Dawid Johannes Koen testified that he was born at Bellville, South Africa on

15 February 1960, and is now 54 years of age. His mother died 16 years ago,

while his father passed on in May 2013. He was already in custody on this

matter, but was allowed to attend his father’s funeral. He handed in his passport

as part of his bail condition. He has one brother and a sister. The accused first

came to Namibia at the age of 12 in the company of his parents. They first settled

in Keetmanshoop, later Tsumeb and eventually they came to Windhoek. He first

did 2 years compulsory military in Oudshoorn South Africa, and later in

Otjiwarongo before Independence. He went up to Grade 12 in 1978. He got

married in September 1983. The accused first started working for Volkskas, Bank

Windhoek, later Agrabank. Altogether he worked in the banks for 18 years. From

there he worked for Kuisebmund Municipality and latter he started at Outjo

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Municipality as a treasurer, in the year 2000. He resigned at the time of this

incident. He was still married, his wife, a nurse by profession, worked at Outjo

Pharmacy.

[3.2] At his work the accused received between N$6 000 to N$7 000, and his wife

received N$5 000. Altogether they brought N$11 000 home every month end. His

eldest son did a 4 year course as a quantity surveyor at the University of

Pretoria. His second born son was 19 years old at the time of his arrest,

employed by a Steel Construction Company. His daughter is working for Agra in

Outjo. His wife divorced him one year after the incident. He did not oppose the

action, his house was awarded to her in a court order. She still works at the

pharmacy in Outjo and resides in her house to this day. At the beginning of the

incident he started drinking too much. He used pills and a lot of alcohol, ill treated

his wife and children. He was suffering from high blood pressure, depression

high fever and cholesterol. Alcohol and medication made him feel pain thereby

telling his wife and children they were bad people. He was referred to Okonguari

Rehabilitation Centre for three months. There he was treated for high chronic

depression, alcohol misuse and for wanting to commit suicide. After his release

he had up to six follow-up sessions. His ex-wife has in the meantime been

diagnosed with breast cancer and is receiving treatment. Her breast was

removed, and is receiving treatment to curb the cancer virus from spreading to

other parts of the body.

[3.3] The monthly bond premiums on his wife’s house is in arrears. If he is sent to

prison his ex-wife will not afford to pay the bond. He is planning to move into a

flat, lease out the house for a bigger amount to sustain bond repayments. He

owed Bank Windhoek on his two vehicles, as such he had to sell them off to

settle the debt. He could no longer afford having them. On resignation his

pension amounting to ± N$386 000 was paid out to Outjo Municipality and he

was not comfortable with that payment. After his resignation it was very difficult

for him to get employment, because they knew he was facing criminal charges.

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Du Plessis Carpentry was tendered to restore the Outjo building. He is working

for Kamuku Transport which buys and exports devils claw. He earns N$10 000

per month. At some stage he practiced a hobby in respect of meat products and

had a butchery where he was selling meat, but had sold it because he needed

money. After his arrest some community members in Outjo created a fund where

well wishers deposited money he used to cover his legal costs which included his

bail application. He is aware of the fact that he is facing very serious charges. He

was initially charged for arson, but later charges of fraud and defeating the cause

of justice were added on. He has only N$50 000 which he paid for bail, and will

ask a loan from family members to raise N$350 000 which he can pay back later.

This amount can then be made available as court fine, or reduce the

complainants losses, or part of a suspended sentence depending on what the

court will order.

[3.4] In terms of the charges to which he pleaded guilty, the amount of pension

paid to the Municipality leaves more or less than N$1,19 million as the monies he

still owes. In 2006/7 monthly premiums on the payment of cars and house bonds

got into arrears, this is what made him start taking the money. At the time he and

his wife paid for their sons studies. He had his whole family on his medical

insurance. Arrears were in substantial amounts such that the Bank wanted to

repossess his house. That is the time when he was drinking heavily every night.

He used the stolen money for all his necessities – the same way he would use

his own. Initially he thought after taking the money he would replace it, but it did

not work out at all. But he nonetheless continued taking the money on a regular

basis. He started thinking seriously how he should replace the money, and with

these thoughts heavy drinking escalated. This also resulted in the overdose of

his medication, and his marital affairs also got hurt in that process. Suicide

thoughts also caught up with him, seeing it as a good option instead waiting to be

arrested but he did not have the guts to do so. When he heard about the auditors

that were supposed to be sent from Windhoek to audit the books at Outjo he

proceeded to burn the building in order to destroy evidence. He drove to about

17

60 km outside Outjo, sat inside his car, contemplating suicide, it was here where

he later surrendered himself to arrest. He was taken to a lawyer in Outjo and

later to Sophien Hof Lodge outside Outjo. He is a first offender and feels very

bad about what had happened.

[3.5] On 15 March 2010 the accused collected a letter from Outjo Municipality

confirming his resignation. The accused has to date made no effort to make any

payment on all the monies he pleaded to have stolen. The aggravating conduct

the accused has conceded to have done was to mortgage his house three times

in excess of its value, thereby making it virtually impossible for the Outjo

Municipality to attach and sale it in execution to realize the debt accused owes

them. The accused was aware of the fact the excessive mortgage was an

obstacle for the counsil to recover the losses he inflicted on them.

[3.6] The accused also conceded that the money he stole from Outjo Municipality

were the actual municipal bills such as water, electricity and refuse collection

payments made by the residents of the municipal area of Outjo. He also

conceded that elderly pensioners are also included as part of the residents of

Outjo. The fire destroyed all receipt books and all records of proof of payments.

The accused could not dispute that an Insurance Company paid the councel

N$560 310,03 for the replacement of the damaged electronic equipment. Neither

could he dispute that the Council was charged N$82 037,85 for the cost of the bill

itself and not the contents. He does not dispute the fact that Outjo Municipality

has suffered massive losses at his hands. An amount of N$2 262, 327,18 million

dollars to rebuild the Municipality of Outjo. He conceded that on 26 April 2007

himself and the Chief Executive Officer of Outjo Municipality prepared the

financial statement to be presented before the preliminary standing Committee

on public accounts of financial statements, for audit purposes. These financial

statements covered the period 05 March 2007 to 17 August 2009.

[3.7] The Audit Firm Centre was appointed to start auditing Outjo financial books

18

on 17 August 2009, but it did not happen, because that was the day he set the

Finance building (Administration Block) on fire early in the morning. The accused

also conceded that under his command as treasurer at Outjo were an

accountant, Senior accountant, debtor clerks and cashiers who were supposed

to do the daily bankings. He took over the daily banking duties in order to access

the municipal monies and to gradually start with the stealing spree. His Bank

Windhoek account showed that he had ample access to legal fees and was

financially well off affording substantial deposits after every three days. The

Municipality was also giving him advance salary on request.

[3.8] The accused conceded that he was able to access to the legal ways of

obtaining money. He said he was depositing large sums of money because he

had went over the limit of his bank account. He knew he held a very high office of

responsibility at the Municipality that required trust from his employer. The board,

Mayor, councilors, and the resident of the town relied on him to properly run the

finances of the town. What he did was a gross abuse of that high trust. The

accused also conceded that after realizing the seriousness of the matter (the

crime he has committed) he started to have sleepless nights. He resorted to treat

himself to drinking alcohol excessively. He naturally did not have a drinking

problem. According to him they are married in community of property, such that

even if the house was not transferred to his wife’s name, the Municipality would

only have been entitled to his share of the property.

[4] Herman Abel Raath testified he is a Clinical Psychologist specialist, registered

with the Social Worker Psychology Council of Namibia. He is currently stationed

at a Psychiatric Private Hospital, Okanguare Psycho Therapy Centre near

Khorixas. He established the Centre in 1997 and was the head and owner

thereof up to 2011. He is now working as a private practitioner in Otjiwarongo

specializing in family/couple therapy, and also working as a consultant at

Okanguare Centre. In short his experience relates to the treatment of mental

ailments by means of psycho therapeutic process. He knows the accused from

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August 2009 when he first consulted him in the Police Cells in Outjo. He had a

severe major depressive episode. On request this witness made to the police the

accused was transferred to Okanguare Psycho Therapeutic Centre for the

treatment of acute depression accompanied by excessive use of alcohol which

the accused thought as a self-medication to alleviate depression. The accused

developed a peculiar need to commit suicide, a psychiatrical emergency that

needed to be treated without delay. He was among other medication that he

received put on sleeping tablets.

[4.1] During cross-examination the witness conceded that during consultation he

realized that the accused was able to distinguish between right and wrong. It is

obvious, he said that he had the fear of what was going to happen. This was one

of the contributing factors to his illness. This witness stated that the accused

used alcohol as a self-medication to reduce the grief and worries with al the

consequences that may go with the crime he has committed. The accused could

not face the consequences of what he did because of his lack of self esteem.

The alcohol made the accused to feel momentarily relieved of the trauma of the

depression.

[5] Paul !Goagoseb, a Pastor by profession, testified that he was the Mayor of

Outjo from 1992 to 2004 and he came to know the accused since 2000 when he

became the successful candidate for the post of treasurer for Outjo Municipality.

He became the Strategic Executive officer also known as the Chief Financial

accounting officer reporting to council through the Chief Executive Officer. The

transitional period in which this witness served as the Mayor of Outjo had a lot of

difficult challenges relating national reconciliation between blacks and white

residents. ”Kaffer boetie” was in reference to white people who were friendly to

black people. The blacks were then still not allowed to buy white bread and white

sugar. Apart from performing duties as treasurer very well, the accused also

assisted in bringing blacks and whites together. His office was open and friendly

to tenants and he was flexible in accommodating arrangements for later

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payments instead of cutting the water to the tenants. The witness said he was a

friend to the accused. He conceded that it was wrong that he stole the rates and

taxes paid by Outjo town residents.

[6] In mitigation for sentence Mr Wessels stated that at the time he committed the

crime the accused was in financial problems. He came to court to apologize,

pleaded guilty to his wrong doing. His pension amounting to N$286 000,00 has

been paid to the council. Alternatively that can be paid to reduce the losses the

complainant has suffered. The accused is also ready to make monthly payments

in realization of a condition to a suspended sentence should it be imposed. He

will not have access to a pension fund in his lifetime. He referred to S v Cleopas

1977(2) SA at 154 where the court held that if in the nature of the offence, the

same objective can be achieved by an alternative to imprisonment, a custodial

sentence would not be appropriate.

[6.1] Mr Wessels also referred to the case of Jerry Wilson Munyama where the

Supreme Court set aside the 10 years imprisonment and substituted it with six

(6) years of which three (3) years were suspended. This case is clearly

distinguishable from the matter before this court because Munyama out of his

own accord, and before he was even arrested used the larger part of the money

stolen to pay off some of the NBC debts, and only utilized the remaining

N$100,720 for himself. In the matter before court if Outjo Municipality had not

made arrangements on its own to facilitate the payment of the accused’s pension

benefits into its coffers, it would not have so far recovered anything. Another

significant difference between these two cases is that the accused in the matter

before this court stole a substantial amount of money and then proceeded to

burn down the Finance Block (Administration Building) of Outjo Municipality with

all its contents including computers, copier machines and laptops, which

Munyama did not do to the NBC building.

[6.2] Mr Wessels referred to several authorities where accused persons stole lots

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of money in abuse of trust placed on them by their employers and were given

partly suspended sentences. He submitted that a long term direct imprisonment

sentence would not be appropriate. The accused, in the counsel’s view will be

able to rehabilitate himself outside the confines of prison and is currently gainfully

employed, financially supports his family.

[7] In aggravation of sentence Mr Marondedze submitted that the remorse which

the accused placed before court is not genuine. According to this counsel for

genuine remorse the accused should have approached the council immediately

after the commission of the offence, taken the necessary steps to have the

burned building repaired and make an effort to pay back the money he had

stolen. It appears that if the council did not withhold his pension, the accused

would not on his own accord have done anything to make good the damage he

has done. Instead of showing remorse by approaching council to agree on how

he can repay the building he stayed away. The complainant had no choice but to

take a very expensive route of instituting a claim against him, which he defended.

[7.1] In the meantime the accused disposed off his assets resulting in him later

consenting to an empty judgment. The judgment served no purpose because

even if the accused was jointly sued with his wife to whom he was married in

community of property with the aim of attach their house, the judgment would still

be of no value due to the fact that the house was heavily mortgaged. His seven

cars were no longer available. The Deputy Sheriff returned a nulla bona return of

service meaning that the accused had nothing which could be attached to realize

anything related to the damages he has made to the Outjo Council. The accused

put all these efforts in place to frustrate the Council from recovering anything

from him, clearly showing that he is as not remorseful at all. The prosecution

council submitted that the accused’s pension which was paid to Council is

nothing compared to the losses he brought to bear on Outjo Municipality.

According to this counsel a lighter sentence on the accused would have far

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reaching consequences for the local authorities countrywide.

[8] In sentencing the accused I have carefully thought and taken the following

factors into account. After listening to the evidence and submissions from both

parties and all the documents filed of record on this matter I came to the

conclusion that aggravating circumstances outweigh the accused’s personal

(mitigating) factors by a very large margin.

[9] MITIGATORY

The accused is 54 years old, a first offender, pleaded guilty to theft and

defeating the cause of justice. His pension money amounting to N$386,

272,87 was paid over to Outjo Municipality. Out of this amount, N$246,

007,09 was paid for the legal costs incurred by the councel in legally

pursuing the accused to recover the damages he has caused in stealing

the money and burning the Finance building. The remaining N$140,

265,78 was availed to the accused’s sundry account, payment to creditors

and outstanding salary advances.

[10] IN AGGRAVATION

The accused, a then Strategic Executive officer/Chief Finance officer

known as the treasurer of the Outjo Municipality started stealing the

Council monies from March 2007 to August 2009, a period of two and half

years.

The accused pleaded not guilty to fraud because he knew that he has

destroyed all the relevant documentation, when he burned down the

Administration building (Finance Block), there was no way the prosecution

would prove its case against him.

N$1,810,324,33 Interest that accumulated on the employee’s debt of

PAYE deductions at Outjo Municipality resulting from none regular

payments, submitting tax returns to the Receiver of Revenue as a result of

cash flow emanating from the theft of substantial amounts of money by

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accused.

Developments of the Outjo town were brought to a stand still for a

considerable period due to severe cash flow resulting in purchase

creditors closing Municipal accounts.

On 17 August 2009 the day the accused burned down the Finance Block

(Administration Building) of the Outjo Municipality his house Erf 808 also

in Outjo was fully equipped with furniture. On the same erf he also had a

fully equipped butchery. All his seven vehicles were nowhere to be found.

The property were removed or hidden away by him. The house itself was

heavily mortgaged with registered bonds and five lease agreement such

that the Deputy Sheriff returned a Nulla Bona return of service – meaning

the accused had successfully made it impossible for the complainant

Outjo Council to recover its losses by way of attachment of his immovable

or movable property.

The recommended insurance settlement agreement between Mutual &

Federal Insurance Company and Outjo Municipality represented by its

Chief Executive officer was in the total amount of N$144, 347,88. This

amount includes all electronic equipment, the burnt building itself as well

as the replacement of content. This amount was to be paid to the Outjo

Chief Executive officer by way of cash payment repairing and or

replacement of goods and items.

The pertinent effect of the crime of arson on Outjo Municipality and the

community:

All books containing handwritten receipts issued between the period 01

July 2009 to 17 August 2009 were destroyed by fire. All debtors were

requested to bring original handwritten receipts for their accounts to be

credited. Several residents, including elderly pensioners who were unable

to provide their original receipts suffered huge losses.

History books and records dated from 1944, as well as graveyard registers

and creditors payment record were destroyed and lost forever.

The theft and fraud that the accused committed in taking the Municipality’s

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monies is substantial. He pleaded guilty to arson, theft in respect of the

second alternative to the main count in count 111 that is theft and not

guilty to fraud which could not be proved against him because he has

destroyed all the relevant documents.

The resultant severe anxiety of the accused’s high chronic depression for

which he has since been receiving some treatment, in my view was self

inflicted and therefore more aggravating than mitigatory. The reason being

that he created sleepless nights for himself when he started stealing the

monies that he was so highly positioned and in confidence entrusted to

jealously take care of. When he realized the obvious danger of being

arrested he felt the need to steal more and more to afford alcohol in order

for him to be under the influence which he thought was the treatment to

forget about the wrongs he was committing.

[11] The main aim for the provision of local authorities is to bring the much

needed essential services closer to the residents of villages and town councils.

The employees of local authorities and in particular those of the Finance

department are tasked to promptly receive, and record, all monies paid in for

various services, and banking it regularly. This is the task the accused in his

capacity as the Strategic Executive Officer, Treasurer (Chief Financial Officer)

with his vast experience in the financial sector was expected to jealously guard

and supervise at all relevant times.

[11.1] As the overall Head of the Financial Department the accused dismally

failed and humiliated the residents of Outjo, by stealing the monies they were

paying to the Municipality for various services. The destruction did not spare the

irreplaceable valuable historical documents that were kept there for years.

[12] It is my considered view that the crime the accused has committed in

particular the arson is clearly one of the worst to be committed by a high ranking

local authority official that has found its rightful place on this Court’s criminal

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court books. I am therefore of the view that a lighter sentence may easily have

far reaching consequences to other local authorities countrywide.

[13] In the result the accused is sentenced as follows:

Counts 1 and 2 are taken together for purposes of sentence:

Twelve (12) years’ imprisonment.

Count 3: Theft to some of the charges in respect of the second alternative to the

main count in count 3: N$350,000,00 or in default of payment Six (6)

years’ imprisonment.

_____________

A M SIBOLEKA

Judge

APPEARANCES

STATE: E E Marondedze

Instructed by The Office of the Prosecutor-General

DEFENCE: J Wessels

Instructed by Directorate of Legal Aid