Fraudster wins sympathy of appeal judges
IT’S HOLIDAY season for the judiciary as well as the rest of us, so I’ve made a detour through the courts of neighbouring states to see what’s been happening. That’s how I came across the case of Munyama v The State, in which the Namibian Supreme Court delivered its appeal decision a fortnight ago.
In mid-2005 Gerry Wilson Munyama, one-time top dog at the Namibian Broadcasting Corporation, forged a document purporting to be a resolution of the NBC board of directors, allowing him to open an account in the name of the broadcaster at any bank, with exclusive signing powers on the account. Using this document, he opened a Standard Bank account, giving his residential address and a private postal address as the address of the NBC. Included in his first deposit was a N$25 000 donation from the FNB Foundation intended for training NBC staff.
The rest of his N$345 996 deposit came from the proceeds of NBC shares that he claimed from Old Mutual. Within months, all the money was gone and he closed the account but was soon arrested, charged and convicted of fraud and forgery. The trial court sentenced him to 10 years for fraud, three years of which were suspended on certain conditions, including that he repay N$100 720 that the state proved he had taken from the corporation. For the forgery charge – drawing up the false authorising document – he was given a three-year concurrent sentence. Munyama had struck at a time when the NBC was struggling and, as the corporation’s director-general, he was well aware of its financial vulnerabilities.
The trial judge, Kato van Niekerk, was scathing: he had “failed miserably in his duty and abused the trust placed in him”.
He had known of the NBC’S dire financial circumstances and the fact that some of its suppliers were not being paid. Despite this, he had taken “a large sum” of the NBC’S money. “It was like stealing from the poor or the bankrupt,” she said, adding that his misappropriation of funds would “tend to place a damper upon the generosity and goodwill of organisations, persons and institutions when they are approached for similar donations in future”. Fraud such as that committed by Munyama “places bur- dens on society in general, including on those who are honest, because it generates a general view of distrust requiring increasingly cumbersome measures in all walks of life to combat and prevent fraud”.
The judge drew a distinction between Munyama’s case and another in which a convicted fraudster had been given a lesser sentence. While that case involved someone who had acted under the influence of a more senior colleague, Munyama was the most senior staffer at the NBC, she said.
“Even the lowest employees who abuse their positions of trust by defrauding or stealing from their employers are generally given… severe sentences. In my view it is no use to impose such sentences if top executives committing similar or more serious crimes are not dealt with even more strictly, although a balanced approach must always be followed.” She refused Munyama leave to challenge the outcome but the Supreme Court gave him special leave to appeal against his sentence only. That appeal was heard in October and judgment was delivered last month. The three appeal judges concluded that the sentence – an effective seven years plus repaying the money – was shockingly severe, and replaced it with a sentence of six years, three suspended, to run from September 2010.
The three appeal judges said they would have given more weight to factors such as the “trauma and disruption” caused to Munyama’s family and the fact that he had repaid the money. Having virtually halved the sentence, the appeal judges apparently felt they should stress their commitment to the eradication of corruption, though they added a telling rider. Such crimes should be “visited with vigorous punishment where necessary”, they said.
Quite what “where necessary” means isn’t clear; however, since an effective sentence of three years can hardly be called “vigorous punishment”, we are left with the conclusion that Munyama’s offence was a case in which robust punishment was thought “unnecessary” by Namibia’s highest court. Strange that; if you were considering a bit of fraud and corruption in Windhoek, would you be put off by the risk of a mere three years?
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