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REPORTABLE
CASE NO.: SA 45/2010
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
THE STATE Appellant
and
SIMON NAMA GOABABABRAHAM JOHN GEORGEFirst RespondentSecond RespondentCoram
:
 
SHIVUTE CJ, MARITZ JA, and MAINGA JA
Heard:
27 June 2012
Order:
27 June 2012
Delivered
: 15 November 2012 ____________________________________________________________________ 
APPEAL JUDGMENT (REASONS)
  ____________________________________________________________________ SHIVUTE CJ (MARITZ JA and
 
MAINGA JA concurring):[1] This appeal by the State against the discharge of the respondents was heardon 27 June 2012. On the same day, we allowed the appeal and indicated thatreasons were to follow. These are the reasons.
 
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[2] The respondents, then as accused persons, were arraigned in the High Courton an indictment containing three principal charges. In respect of counts 1 and 2 therespondents were jointly charged with corruptly using office or position for gratificationin contravention of s 43(1) of the Anti-Corruption Act, 8 of 2003 (the Act). In summary,count 1 is to the effect that they used an official purchase order and claim form to renta motor vehicle with registration number N 82959 W on 1 March 2007 from a car rental company for private use at a discounted governmental rate. Count 2, in brief, isthat they rented a motor vehicle with registration number DDS 937 FS on 15 March2007 from a car rental company for private use and later paid the rental charges withan official cheque drawn against the account of the National Assembly. The charge of fraud was preferred against them as an alternative to the first count. In respect of thesecond count, fraud and theft were preferred as first and second alternative chargesrespectively. Additionally, the first respondent was charged with corruptly using officeor position for gratification in contravention of s 43(1) of the Act by using a motor vehicle with registration number GRN 343 for personal gain or benefit withoutauthority or permission of the owner, with the charge of use of motor vehicle without
owner’s consent in contravention of s 83(2) of the Road Traffic and Transport Act,
22of 1999 as the alternative charge. The indictment shows that s 43(1) of the Act under which the main charges were preferred, was to be read with ss 32
1
, 43(2)
2
, 43(3)
3
 
1
 
Definitions for Chapter 4 of the Act.
2
Which reads: 'For the purposes of subsection (1), proof that a public officer in a public body has madea 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
 
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and 49
4
of the Act. Both respondents pleaded not guilty to all the charges andtendered written plea explanations. In summary, the first respondent produced alengthy document advancing a convoluted argument denying in effect that he hadcommitted any offence at all and contending that the conduct complained of did notamount to any offence in terms of the Act. The second respondent likewise deniedthat he had any intention to commit the alleged offences and maintained in effect thathe was merely obeying orders or instructions given to him by the first respondent, hissuperior.[3]
 At the conclusion of the State’s case the respondents applied for their 
discharge in terms of s 174 of the Criminal Procedure Act, 51 of 1977 (CriminalProcedure Act). The Court below granted the application and discharged them on thethree main counts. They were, however, placed on their defence in respect of thealternative charges. The State made application for leave to appeal against thedischarge of the respondents, which application was granted by the Court below on 6September 2011.Background[4] At the time of the events leading to the prosecution of the respondents, the firstrespondent was the Secretary of the National Assembly appointed or designated assuch pursuant to Article 52 of the Namibian Constitution. As Secretary of the National
officer has corruptly used his or her office or position in the public body in order to obtain agratification.'
3
Definitions for 'relative' and 'associate'.
4
Penalties.

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