Financial Crime World

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OLD MUTUAL NAMIBIA LTD vs INA JOY TSHITETA & ANOTHER

HIGH COURT OF NAMIBIA, SPECIAL APPEAL COURT

Judgment

Date: 20 November 2022

Before: J T Salionga and H C January JJ

The accused, Ina Joy Tshiteta and another, were charged with uttering, fraud, and forgery in respect of 63 counts. The allegations were that they had forged documents and uttered them to Old Mutual Namibia Ltd, thereby committing fraud.

Facts

It is undisputed that the accused admitted to forging and uttering the forged documents with the sole purpose of defrauding Old Mutual Namibia Ltd and its policy holders or representatives. They:

  • Fraudulently completed investment forms
  • Falsified signatures
  • Inserted their own bank account details
  • Submitted them for payment, knowing they were false and would result in actual or potential prejudice to the complainants

Law

The court applied the single intent test, which holds that where a person commits two acts of which standing alone would be criminal but does so with a single intent and both acts are necessary to carry out that intent, they ought only to be indicted for or convicted of one offence.

The court found that the accused committed three separate and distinguishable offences, but had a single intent to defraud.

Conclusion

The court held that the convictions on fraud, forgery, and uttering were a misdirection. The conviction on uttering was set aside, and the sentences imposed were also set aside and substituted with a sentence of 15 years’ imprisonment, with five years suspended for five years, on condition that the accused is not convicted of the crime of fraud or forgery during the period of suspension.

Order

The court made the following order:

  1. The appeal against convictions and sentences succeeds.
  2. The sixty-three (63) convictions of uttering are set aside and the sixty-three (63) counts of fraud and sixty-three (63) counts of forgery are confirmed.
  3. The sentence imposed is set aside and substituted with a sentence of 15 years’ imprisonment, with five years suspended for five years, on condition that the accused is not convicted of the crime of fraud or forgery during the period of suspension.
  4. The sentence is ante-dated to 20 November 2017.

Appearance

The appellant was represented by Mr P Greyling of Greyling & Associates, Oshakati. The respondent was represented by Mr J Pienaar of the Office of the Prosecutor General, Oshakati.