THE HIGH COURT OF WINDHOEK, MAIN DIVISION

JUDGMENT

REPORTABLE

CASE NO.: CC 28/2009

In the matter between:

THE STATE

versus

AMIRTHALINGAM PUGALNANTHY ACCUSED 1SATHEESKUMAR THULASITHAS ACCUSED 2PARARASASINGAM SARANGAN ACCUSED 3TRAVOLTA MEKAUNDAPI TJUIJI ACCUSED 4ABDUL KADER S/O JAMAL MOHAMED ACCUSED 5ANTHONY SURESH KUMAR STANIS ACCUSED 6

Neutral citation: S v Pugalnanthy (CC 28/2009) [2014] NAHCMD 130 (7 April

2014)

2

CORAM: SIBOLEKA J

Heard on: 28 February 2011; 02, 03, 04, 07, 08, 09, 10, 11, 14, 15, 16, 17, 18

31 March 2011; 1, 2, 5, 6, 7, 8, 9, 12, 14, 15 December 2011;

16, 17, 18, 19, 20, 23, 24, 25, 26, 27, 30, 31 January 2012;

1, 2, 3 February 2012; 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23,

24, 25, 30 October 2012; 19 August 2013; 1, 4, 5 November

2013

Delivered on: 07 April 2014

JUDGMENT: SIBOLEKA J

[1] Accused no. 1 was on bail and has absconded before the commencement of

this trial. All accused persons (2 to 6) have pleaded not guilty to the following

counts:

COUNT 1: CONTRAVENING SECTION 18(2)(a) OF THE RIOTOUS

ASSEMBLIES ACT 17 of 1956 – CONSPIRACY TO COMMIT FRAUD, READ

WITH SECTION 84(2) AND 92 OF THE CRIMINAL PROCEDURE ACT 51 OF

1977.

In that from sometime prior to 18 March 2007, the exact date being unknown, to

26 September 2007 and at or near Windhoek in the district of Windhoek and

elsewhere the accused unlawfully and intentionally conspired with one another

and other persons, unknown to the State to aid or procure the commission of or

3

to commit the offence of Fraud.

COUNT 2: FRAUD

In that on or about and during the period 19 March 2007 and 7 August 2007 and

at or near Windhoek and various other districts within the jurisdiction of the High

Court of Namibia, the said accused did wrongfully, unlawfully, falsely and with

intent to defraud give out and pretend to Bank Windhoek and/or Standard Bank

Namibia and/or First National Bank Namibia and/or Visa International and/or

Master Card International and/or Barclays Bank PLC that –

(i) they were entitled to lawfully access foreign bank accounts to

process transactions by means of using Bank Windhoek and/or

Standard Bank Namibia and/or First National Bank Namibia

facilities and/or cards purportedly issued by the local banks, and/or

(ii) they were entitled to lawfully withdraw cash money to the value of

N$4 238,810 from such foreign bank accounts,

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

Bank Windhoek and/or Standard Bank Namibia and/or First National Bank

Namibia and/or Visa International and/or Master Card International and/or

Barclays Bank PLC to the actual and/or potential loss or prejudice of Bank

Windhoek and/or Standard Bank Namibia and/or First National Bank Namibia

and/or Visa International and/or Master Card International and/or Barclays Bank

PLC and/or it’s Representative/s to

(i) provide the request access to the foreign bank accounts by using

4

Bank Windhoek and/or Standard Bank Namibia and/or First

National Bank Namibia facilities and/or cards purportedly issued by

the local banks, and/or

(ii) process transactions initiated at aforementioned facilities and/or

(iii) allow the withdrawal and/or attempted withdrawal of cash money to

the value of N$4 238,810 from such foreign bank accounts,

Whereas in truth and fact the accused when they so gave out and pretended as

aforesaid, well knew that

(i) they were not lawfully entitled to access the foreign bank accounts

to process transactions thereon, and/or

(ii) the foreign account holder/s and/or the Banking Institution/s of the

account holder/s did not know about or did not instruct or request or

authorize such withdrawals, and/or

(iii) the accused were not entitled to withdraw and/or attempt to

withdraw cash money to the value of N$4 238,810 from the foreign

bank accounts

And thus the accused did commit the crime of Fraud.

ALTERNATIVELY TO COUNT 2: THEFT

In that on or about and during the period 19 March 2007 and 7 August 2007 and

at or near Windhoek and various other districts within the jurisdiction of the High

Court of Namibia, the said accused did wrongfully, unlawfully and intentionally

5

steal money and/or attempted to steal money to the total value of N$4 238,810

from the legal owners and/or lawful possessors Bank Windhoek and/or Visa

International and/or Master Card International and/or Barclays Bank PLC and/or

it’s Representative/s.

COUNTS 3 TO 1033 (AS PER COLUMN A OF SCHEDULE 1): FRAUD

In that on or about the dates mentioned in Column B of Schedule 1 and at or

near various districts within the jurisdiction of the High Court of Namibia, the

accused did wrongfully, unlawfully, falsely and with intent to defraud

misrepresented to Bank Windhoek and/or Standard Bank Namibia and/or the

merchants mentioned in Column C of Schedule 1 and/or Visa International

and/or Barclays Bank PLC and/or the Representative/s of any of the

aforementioned to the actual and/or potential loss or prejudice of Bank Windhoek

and/or Standard Bank Namibia and/or Visa International and/or Barclays Bank

PLC and/or it’s Representative/s that

(i) they were the lawful holder/s of the debit or credit cards as per card

number indicated in Column D of Schedule 1, and/or

(ii) they were entitled to lawfully access the accounts of cardholders as

indicated per Column E of Schedule 1 and withdraw or attempt to

withdraw money the value of which is indicated in Sterling per

Column F of Schedule 1 and in Namibian Dollars as per Column G

of Schedule 1.

6

Whereas in truth and fact the Accused when they so misrepresented well knew

that

(i) they were not the lawful holder/s of the debit or credit cards as per

card number indicated in Column D of Schedule 1, and/or

(ii) they were not entitled to lawfully access the accounts of

cardholders as indicated per Column E of Schedule 1, and/or

(iii) they were not entitled to withdraw or attempt to draw money from

said cardholders accounts and/or,

(iv) they were not entitled to money the value of which is Indicated in

Sterling per Column F of Schedule 1 and in Namibian Dollars as

indicated per Column G of Schedule 1.

Now thus the Accused are guilty of the offence of Fraud.

ALTERNATIVELY TO COUNTS 3 TO 1033 (AS PER COLUMN A OF

SCHEDULE 1): THEFT

In that upon or about the dates mentioned in Column B of Schedule 1 and at or

near various districts within the jurisdiction of the High Court of Namibia the

Accused wrongfully, unlawfully and intentionally stole the amounts mentioned in

Column F or G of Schedule 1, the property and/or in the lawful possession of

Bank Windhoek and/or Standard Bank Namibia and/or Visa International and/or

Barclays Bank PLC and/or it’s Representative/s and/or the Cardholder as per

Column E of Schedule 1.

7

COUNTS 1-34 TO 1507 (AS PER COLUMN A OF SCHEDULE 2): FORGERY,

READ WITH SECTIONS 84(2) AND 92 OF THE CRIMINAL PROCEDURE ACT

51 OF 1977

In that on or about 18 March 2007 to 7 August 2007, the exact date being

unknown and at or near Windhoek in the district of Windhoek, the accused did

unlawfully, falsely and with intent to defraud and to the prejudice or potential

prejudice of the Banking Institution and/or Merchant mentioned in Column B of

Schedule 2 forge the debit or credit or gift cards by encoding the numbers

mentioned in Column C of Schedule 2 on the magnetic strip and/or printing the

image and/or colors and/or logos of the Banking Institution and/or Merchant

mentioned in Column B on the cards and thus purportedly indicating it to be

issued by the Banking Institution and/or Merchant mentioned in Column B of

Schedule 2.

COUNT 1508: THEFT

In that between 28 March 2007 and 7 August 2007 at or near Windhoek in the

district of Windhoek the Accused unlawfully and intentionally stole a debit card of

Riduwon Otto the property and/or in the lawful possession of Riduwon Otto

and/or First National Bank Namibia.

ALTERNATIVELY TO COUNT 1508: CONTRAVENING SECTION 8(1) OF

ORDINANCE 12 OF 1956 – UNLAWFUL USE OF PROPERTY

8

In that between 28 March 2007 and 7 August 2007 at or near Windhoek in the

district of Windhoek the said accused without a bona fide claim of right and

without the consent of First National Bank Namibia and/or Riduwon Otto the

owner/s and/or the person/s having control thereof, did wrongfully and unlawfully

remove property to wit a debit card from the control of the said Riduwon Otto

and/or First National Bank Namibia with the intent to use it for their own purposes

without the consent of the owner/s or any other person competent to give such

consent.

COUNT 1509: THEFT

In that between 21 March 2007 and 7 August 2007 at or near Windhoek in the

district of Windhoek the Accused unlawfully and intentionally stole a Bank

Windhoek debit card of Zebedeus Kaikuru Mutenge, the property and/or in the

lawful possession of Zebedeus Kaikuru Mutenge and/or Bank Windhoek.

COUNT 1510: THEFT

In that between April 2007 and 7 August 2007 at or near Windhoek in the district

of Windhoek the Accused unlawfully and intentionally stole a bank card of F. N.

Amutenja, the property and/or in the lawful possession of Feni Ndukuma

Amutenja and/or Standard Bank Namibia.

ALTERNATIVELY TO COUNT 1510: CONTRAVENING SECTION 8(1) OF

ORDINANCE 12 OF 1956 – UNLAWFUL USE OF PROPERTY

9

In that between April 2007 and 7 August 2007 and at or near Windhoek in the

district of Windhoek the said accused without a bona fide claim of right and

without the consent of Standard Bank Namibia and/or Feni Ndukuma Amutenja

and/or Standard Bank Namibia with intent to use it for their own purposes without

the consent of the owner/s or any other person competent to give such consent.

COUNT 1511: THEFT

In that between April 2007 and September 2007 at or near Windhoek in the

district of Windhoek the Accused unlawfully and intentionally stole a bank card of

Anelie Ndemushakena Petrus, the property and/or in the lawful possession of

Anelie Ndemushakena Petrus and/or Bank Windhoek.

ALTERNATIVELY TO COUNT 1511: CONTRAVENING SECTION 8(1) OF

ORDINANCE 12 OF 1956 – UNLAWFUL USE OF PROPERTY

In that between April 2007 and 7 August 2007 and at or near Windhoek in the

district of Windhoek the said accused without a bona fide claim of right and

without the consent of Bank Windhoek and/or Anelie N. Petrus the owner/s

and/or the person/s having control thereof, did wrongfully and unlawfully remove

property to wit a bank card from the control of the said Anelie N. Petrus and/or

Bank Windhoek with intent to use it for their own purposes without the consent of

the owner/s or any other person competent to give such consent.

COUNT 1512: CONTRAVENING REGULATION 2(1) READ WITH

10

REGULATIONS 3(5) AND 22 OF THE EXCHANGE CONTRO REGULATIONS,

1961, AS AMENDED; READ WITH SECTION 9 OF THE CURRENCY AND

EXCHANGE ACT NO 9 OF 1933, FURTHER READ WITH THE PROVISIONS

OF SECTION 94 OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 –

UNLAWFUL BUYING, BORROWING OF FOREIGN CURRENCY

In that on or about 18 March 2007 to 7 August 2007 at or near Windhoek in the

district of Windhoek the accused, acting in concert did wrongfully and unlawfully

not being authorized dealers buy or borrow foreign currency, namely U.S. dollars

to wit ± U$94 000 from unauthorized dealers and/or without having

permission/authority from Treasury.

COUNT 1513: CONTRAVENING SECTION 14(1)(a) READ WITH SECTION 91

OF THE CUSTOMS AND EXCISE ACT 20 OF 1998 – NON-DECLARATION OF

GOODS

In that on or about 18 March 2007 at or near Windhoek in the district of

Windhoek the accused, acting in concert did wrongfully and unlawfully fail to

declare any goods acquired from outside Namibia upon arrival or departure that

is to say failed to declare U.S. dollars.

COUNT 1514: CONTRAVENING REGULATION 2(1) READ WITH

REGULATIONS 3(5) AND 22 OF THE EXCHANGE CONTROL

REGULATIONS, 1961, PROMULGATED BY GOVERNMENT NOTICE R1111

11

OF 1 DECEMBER 1961, AS AMENDED; READ WITH SECTION 9 OF THE

CURRENCY AND EXCHANGE ACT NO. 9 OF 1933, FURTHER READ WITH

THE PROVISIONS OF SECTION 94 OF THE CRIMINAL PROCEDURE ACT,

51 OF 1977 – UNLAWFUL BUYING, BORROWING OF FOREIGN CURRENCY

In that on or about 18 March 2007 to 7 August 2007 at or near Windhoek in the

district of Windhoek the accused acting in concert did wrongfully and unlawfully

not being authorized dealers buy or borrow foreign currency, namely Euros to wit

± 14 000 Euros from unauthorized dealer/s and/or without having

permission/authority from Treasury.

COUNT 1515: CONTRAVENING SECTION 14(1)(a) READ WITH SECTION 91

OF THE CUSTOMS AND EXCISE ACT 20 OF 1998 – NON-DECLARATION OF

GOODS

In that on or about 18 March 2007 to 7 August 2007 at or near Windhoek in the

district of Windhoek the accused acting in concert did wrongfully and unlawfully

fail to declare any goods acquired from outside Namibia upon arrival or departure

that is to say failed to declare Euros.

COUNT 1516: FORGERY (OF A DRIVER’S LICENSE)

In that on or about 18 March 2007 to 7 August 2007 at or near Windhoek in the

district of Windhoek, the accused did unlawfully and with the intent to defraud

and to the prejudice or potential prejudice of Anne-Marie Cornelissen and/or Na-

12

tis and/or Ministry of Works and Transport and/or Government of Namibia forge a

driver’s license for T. Tjuiju.

“______________________________________________________________________

SUMMARY OF SUBSTANTIAL FACTS IN TERMS OF SECTION 144(3)(a) OF THE

CRIMINAL PROSEDURE ACT NO 51 OF 1977

______________________________________________________________________

Accused 1, 2, 3, 5 and 6 are foreigners indicated on their passports as being Sri-Lankan,

British, Sri-Lankan, Singaporean and Sri-Lankan citizens respectively.

Accused 4 is a Namibian citizen.

Accused 1, 2, 3, 5 and 6 entered and exited Namibia via Hosea Kutako Airport according

to information in their respective passports during the period 18 March 2007 to 14

August 2007 on diverse occasions.

Upon some local banks like Bank Windhoek (BWHK) and Standard Bank Namibia (Std

Bank) retrieving cards from their Automatic Teller Machines (ATM’s) which appeared to

be counterfeit cards an investigation was launched.

In the early morning hours of the morning of 07 August 2007 Accused 1 and 3 were

apprehended at a shopping centre at Katutura after withdrawing money at ATM’s of

Bank Windhoek. Accused 2 was arrested soon thereafter when he came to pick-up

Accused 1 and 3. The three accused were arrested with numerous counterfeit bank

cards and large amounts of money inter alia Namibian Dollars, US Dollars and Euros in

their possession.

13

At the Napwu Guesthouse in Suiderhof where the accused were residing more money

were found inter alia U$82,850. Here were also found inter alia a dual sided colour PVC

card-printer with cards in the slot of the machine which were printed on the one-side with

the Bank Windhoek colors and logo and on the other side these cards were still white.

Furthermore 4 boxes with white plastic cards, an Magnetic stripe reader/recorder, label

printers, a laptop, software for printing cards, numerous cell-phones, printed lists with

card numbers and possible pin numbers and more counterfeit cards were among the

items found at the guesthouse. The total amount of cash found with the first three

accused were the equivalent of about N$920 000.

At the guesthouse was also found photo’s of a Herero speaking man and an invitation

letter in the name of Travoltha Tjiuiju. This led to the apprehension of Accused 4 also on

the morning of 07 August 2007. In his possession was found N$9 000. Subsequently a

scanned image of the driver’s license of Accused 4 was inter alia discovered on the

laptop found at the guesthouse. Some information on said driver’s license was altered.

A call and message to the cell phones of the accused in custody, still on the morning of

07 August 2007, led to the apprehension of Accused 5 at Hosea Kutako Airport. Part of

his luggage was found to be a Note counter and two Note verifier devices.

Accused 6 was arrested on 26 September 2007. His visa application to visit Namibia

was supported by an invitation letter in the name of Accused 4 and from his passport it

was apparent that he was previously in Namibia from 24 May to 4 July 2007. Two

laptops and a Lexar USB 4 G were inter alia found in possession of Accused 6.

Through liaison with Visa International and Barclays Bank PLC the cardholders of some

14

of these foreign accounts from which money were withdrawn by the accused or from

which they attempted to withdraw money were identified as customers of Barclays Bank

PLC in the United Kingdom.

In relation to the withdrawals that the accused were successful money was paid out at

the ATM’s at various places throughout Namibia in Namibian Dollars, while and

equivalent amount in Sterling was subtracted from the relevant card holders accounts.

A spreadsheet generated by Barclaycard Fraud team indicates that from the accounts of

approximately 280 different customers were withdrawn in Namibia a total of

approximately 110,000 Sterling which is an equivalent of ± 1.5 million Namibian Dollars

as from 29 May 2007 to 6 August 2007.

Another report prepared by Bank Windhoek in relation to withdrawals made only at

ATM’s of Bank Windhoek found the successful withdrawals as being N$1 467,340 and

the unsuccessful withdrawals as being N$2 771,470; thus bringing the total to N$4

238,810.

According to an official of Barclays Bank PLC the withdrawals in Namibia from accounts

of their customers were unauthorized and fraudulent, resulting in the blocking of the card

numbers, issuing the customers with new card numbers and reimbursing the customers

for their financial losses.

The approximately 474 cards found in possession of the accused are counterfeit cards

inter alia because of the following features. The counterfeit Bank Windhoek and First

15

National Bank cards, differ in color from original cards, though it bears the Bank

Windhoek or First National Bank logo and emblem. On the front of numerous cards the

same information appeared eg. for cardholder name and/or card number. On the

magnetic strip was found encoded, though the information of foreign banks. Another

distinguishing feature of these cards of these cards was that it was a label, on which

numbers were printed, sticked on the front of it.

Some foreign bank cards found in possession of the accused was eg. Capital one,

Maybankard, Monument, HDFC Bank – cards. The same bank cards also had

similarities in relation to the card holders name and/or card number.

Several different types of gift cards, eg Next, Debenhams, TK Maxx, Orange Top up, etc

were found with the accused which also had the information of foreign banks encoded

on their magnetic strips.

Scanned images and/or photocopies of the front and/or back of an original Bank

Windhoek card of A. N. Petrus and Z. K. Mutenge; an original Standard Bank card of

F.N. Amutenja and an original First National Bank card of Riduwon Otto was found in

possession of the accused.

The Namibian Dollars withdrawn by the accused was exchanged for US Dollars and

Euros with people other than authorized dealers and the accused also did not declare

their possession of any foreign currency upon entry into Namibia.

All of the accused acted in the execution of a common purpose to commit the crimes

alleged.”

16

[1.1] In terms of Section 220 of the Criminal Procedure Act, Act 51 of 1977 as

amended, accused 2, 3, and 6 represented by Mr Sisa Namandje and accused 4

and 5 represented by Mr Uirab formally admitted the contents of statements

made by the following 24 British Card holders:

NAMES BANK ACCOUNT NUMBERS

Ms Sophina Jahan Chowdhury 4539 7811 4457 8116

Mr Sam Christopher Hayes 4539 7867 6192 4105

Mr Alan Roy Leadbeater 4539 7879 7721 1261

Mr Ian James Parker 4539 7875 3802 6166

Mr George David Moore 4539 7810 7862 7129

Mr Steven Allmond 4539 7810 5007 0033

Mr Barry Martin Bradley 4537 7977 9876 3028

Mrs Brenda Smith 4539 7953 5846 8202

Mr. Richard J Tromans 4539 7917 8691 4230

Ms Deborah M Hughes 4539 7948 4791 3159

Mr Keith Wakefield 4539 7912 7708 8619

Mr Nigel T Bradley 4539 7910 9327 1308

Ms Gaynor Latham 4539 7951 9419 2081

Mr James Didlock 4539 7987 5073 0021

Mr Lyndon BD Smit 4539 7938 1170 2226

Mrs Janette Collins 4539 7916 8309 7501

Mrs Lyn Melita Cantrill 4539 7943 6521 1101

17

Mr Michael Paul Meadows 4539 7974 0047 5110

Mrs Michelle Yvette Collins 4539 7925 9702 4441

Mrs Delaine Ann Landers 4539 7933 3867 3165

Mr Malcolm C McMahon 4539 7938 1799 1138

Mr Jon D Hughes 4539 7941 0981 1133

Mr Dominic Christopher Currivan 4539 7942 5082 0164

Mr Lee Edward Hayes 4539 7979 8751 6104

[1.2] The victims in this matter allege that monies were withdrawn from their Bank

accounts at ATM machines here in Namibia without their consent or knowledge.

[3] Simon Mungongolo testified that in 2007 he worked as a security officer,

guarding the Bank Windhoek ATM machines, and the Teleshop, Katutura Pick

and Pay Complex (Black Chain) as an employee of Namibia Protection

Services. Mungongolo testified that he saw the accused for the first time on the

6th of June 2007 between 04h00 and 05h00 in the morning. They found him on

duty at Bank Windhoek ATM machines Pick and Pay Complex, Black Chain,

Katutura. He had assumed duty the previous evening 5 June 2007 at 19h00 and

his shift was running up to 06h00 in the morning of the 6 th of June 2007. On this

day three male persons came at the Bank Windhoek ATM machines where he

was guarding. One of the men black in color greeted him in Otjiherero, that was

how he came to know that he was a Namibian citizen. The other two men by the

18

look of their hair and light skin complexion appeared like Indians to Mungongolo.

Accused no. 2 was one of the two foreigners who had started withdrawing money

from the ATM machines while the Otjiherero speaking Namibian citizen was

standing behind them.

[3.1] Mungongolo realized that there was something strange about the three men

whenever other people came walking past, the Namibian male person would tell

the foreigners acting like their interpreter because they didn’t understand any of

the Namibian local languages. What appeared more suspect to him was that the

three men appeared to be afraid for the unknown, they were in fear as they were

withdrawing money. Accused no. 2 gave N$150 to the Otjiherero speaking male

person who in return gave the money to him.

[3.2] It was on 6 June 2007 that Mungongolo got a suspicious mind that

something was wrong with the withdrawals. What made Mungongolo more

suspicious was the fact that the men were continuously withdrawing money all

the time, using a lot (bundles) of cards. During the withdrawals they did not only

concentrate on the ATM machine, but kept looking around. Once a passerby

walked past the men would stop withdrawing and would walk away from there.

Once the person was gone they would again come back and continue

withdrawing. From their movements Mungongolo was able to see that the

accused were afraid or that they knew what they were doing was wrong. The

19

accused were all the time moving and looking around. The Namibian man

was always standing behind other accused as they continuously withdrew

money separately from the machines.

[3.3] In the end they got into two vehicles, a sedan Corolla VV TI and a Nissan

double cab bakkie. When they left he went to the ATM dustbin and retrieved

receipts which strangely only showed the amounts withdrawn, without the ba-

lance, as was the case with the normal ATM withdrawal receipts. The receipts

showed different amounts of money withdrawn. He compared the receipts to the

normal ATM withdrawal receipt and confirmed that the receipts produced by the

ATM machines when the foreigners withdrew did not show balances on the

various accounts. The accused wore trousers with a lot of pockets covering the

whole legs from the knees. When Mungongolo saw all these continuous

suspicious withdrawals, he thought the accused were busy stealing and he

reported the incident to the Manager who thought it could be Cash Loan people.

The Manager was of the view that it was not possible for a person to steal money

from the ATM machines.

[3.4] On 17 June 2007 Mungongolo went on leave, and in July 2007 he resumed

duties. When Mungongolo changed to night shift the same accused continued

coming with the Namibian male person to withdraw money. This time the

accused used the Hardbody Nissan bakkie. It was shortly hereafter when Joseph

20

Mafwila came and introduced himself to Mungongolo as a Bank Windhoek

employee. Mafwila asked Mungongolo about the suspicious movements of

people coming to withdraw money at Bank Windhoek ATM machines.

[3.5] Some cardholders started to report to Joseph Mafwila, the Bank Windhoek

Forensic Investigator who in return approached Mungongolo. Mafwila informed

Mungongolo that theft was in fact being committed at the ATM machines. He

advised Mungongolo that the accused were dangerous, and he should never

make an attempt to arrest them. Mungongolo was tasked to first make friends

with them so that he can immediately call and inform Mafwila when he sees them

at the ATM machines. Mafwila gave his cellphone number to Mungongolo so that

the latter could alert him once the accused came there.

[3.6] It was from here that Mungongolo started talking to the accused. He told

them there were a lot of botsotso in Katutura and therefore dangerous for the

accused to come at the ATM machines at night to withdraw large amounts of

money. He asked accused no. 2, the driver of the Nissan bakkie to give him his

cellphone number so that he can quickly call and alert them when it was quite, in

the area of the ATM machines, no movements of people and therefore safe for

them to come and withdraw money. Accused no. 2 (the driver) gave his

cellphone number to Mungongolo which he saved in the name ‘Indian’.

21

[3.7] On 7 August 2007 between 24h00 and 01h00 at night he was on duty,

sitting at the ATM machine, when an Indian person whose cellphone number he

had saved in his phone called him to find out whether there were a lot of move-

ments of people at the Bank Windhoek ATM machines or not. He replied the

caller that there was none. After he had furnished this answer to the Indian, a

white Nissan Hardbody bakkie driven by accused no. 2 arrived at the ATM

machines with three occupants including the driver. They all alighted and came

at the ATM machines. They wore dula dula black hats on their heads.

[3.8] Accused no. 2, the driver of the bakkie made some withdrawals for some

few minutes and drove away leaving the other two accused busy withdrawing

money. Each of these two accused was withdrawing money. The witness made a

cellphone call to Joseph Mafwila and to Bank Windhoek Area Manager, alerting

them about the presence of the accused at the machine. The accused had

bundles of cards which they used to withdraw money, one after the other in a

continuing process at all three ATM machines. The cards that were used and

those that failed to operate to withdraw money were put back in their pockets.

The accused wore trousers with a lot of pockets wherein they put all the monies

withdrawn. Some money they put in the pocket of their jackets.

[3.9] Mungongolo stood behind the accused while they were busy withdrawing

money and he could clearly see what they were doing. The area was properly

22

lighted, making a good vision of the accused’s activities. Since birth this witness

did not experience any problems with his sight, and as such he does not wear

spectacles. As the witness was observing how the money was withdrawn, it was

suspicious to him, because the accused did not press in secret codes or any pin

number to withdraw money. These accused later went to Standard Bank ATM

machine in the same complex and withdrew money. From there they came back

to Bank Windhoek ATM machines and continued to withdraw money. Joseph

Mafwila and the police arrived while the withdrawing of money was still in

progress. When the accused noticed their movements they left the ATM

machines and walked to the OK Furniture wall.

[3.10] Mungongolo pointed the accused to the police. One of the accused ran to

the nearby Cell One Leo Shop, taking out money from his pockets and throwing it

away on the ground, but he was caught and handcuffed by the police. The other

accused was arrested near the ATM machines. While these arrests were being

effected on the two accused, accused no. 2 who drove away after dropping his

friends came back and started hooting. He parked at Bank Windhoek parking

area. A white police Toyota bakkie parked behind him blocking him from

reversing. This bakkie was then surrounded by the police and the accused 2 was

arrested as well.

[3.11] The police started searching the accused, and they found a lot of money

23

and bundles of cards on them. The officers threw one of the accused’s jackets on

the ground and they put the money thereon. They also found a black bag

containing money and cards as well as two kitchen knives in the vehicle as well.

The whole scene of crime was photo taken by the police as well. The accused’s

appearance looked like they were Indians, that was the reason the witness saved

the cellphone number of one of the accused in the name ‘Indian’.

[3.12] During cross-examination by Mr Namandje, counsel for accused 2, 3 and 6

Mungongolo testified that although he did not attend an inspection parade the

accused persons that he used to see on several occasions in groups of three,

four, and five coming at the Bank Windhoek ATM machines to withdraw money

at night in suspicious circumstances are the ones who were caught red handed

and arrested by the police. These are accused 1, 2, 3. Accused 4 always came

at the ATM, although he did not come on the 7 th of August 2007, the day of

arrest. Accused 2 was there on all occasions because he was their driver. In

court Mungongolo saw that accused no. 2’s passport had 7 June 2007 entry

stamp he insisted that it was him that he saw with other accused on the morning

of the 7th of June 2007. The accused only visited the ATM machines during the

night, Mungongolo never saw them during all his dayshifts.

[3.13] Mungongolo testified that after Joseph Mafwila had spoken to him about

the stealing of money at the ATM machines he still used to see accused 1, 2, 3,

24

with other coming to withdraw money. He suspected the accused persons to be

unlawfully withdrawing the money the very first night when he saw them at the

ATM machines.

[3.14] During cross-examination by Mr Uirab, counsel for accused no. 4 and 5,

Mungongolo testified that he never saw accused 5 before the incident. He said

he saw accused no. 4 three times with foreigners who were withdrawing money

at the Bank Windhoek ATM machines Katutura Pick and Pay. The three

occasions are the 6th of June 2007, 7th of June 2007 and the third occasion

whose date he cannot recall. During these occasions accused no. 4 wore a black

leather jacket. He greeted Mungongolo in Otjiherero and they again spoke in

Otjiherero when he gave him the N$150 he accused no. 4 received from accused

no. 2.

[3.15] During one of the occasions when the accused were at the ATM machines

accused no. 2 asked accused no. 4 to interpret what the people speaking in

Afrikaans were talking about. This was how Mungongolo came to know that

accused no. 4 was indeed a Namibian citizen. On all three occasions that

Mungongolo saw accused no. 4 during the night at the ATM machines, he

personally did not withdraw money or have any card in his hands. He only stood

watch behind, as the other accused continuously slotted one card after the other

from the bundles of cards they were having. Mungongolo confirmed what he

25

stated in his evidence in chief. Mungongolo stated that he never saw accused no.

5 at any of the ATM machines. His evidence clearly shows that he played a very

important role that eventually lead to the arrest of the accused before court.

During cross-examination he did not deviate from what he testified in his

evidence in chief. I find him to be a credible witness who has no reason to falsely

implicate any of the accused before court.

[4] Joseph Mafwila testified that he is employed at Bank Windhoek as a forensic

investigator, The Banks have established a Fraud Security Committee for

financial institutions which meets once every month. All banks are represented

and it was during a meeting in March 2007 when Standard Bank alerted other

members about some counterfeit cards. Bank Windhoek also started to detect

the fake cards at various ATM machines during April 2007. The ATM machines

custodians from the Care Centre who are tasked to fill money into these

machines brought the counterfeit cards to the Forensic Investigation Department

and an investigation was then launched. It was said the first lot detected by

Standard Bank would be sent to South Africa. He then referred the first lot that he

received to Mr Pumba of Standard Bank. From then the custodian were retrieving

lots of such fake cards from the ATM machines and this witness started to make

a profile. The cards and the terminal ATM machines where fake cards were

retrieved was brought to Mafwila.

26

[4.1] Mafwila started compiling the data of the counterfeit cards in April 2007. He

realized that a large volume of these cards were retrieved from the three

machines at Katutura Black Chain. He informed his superiors as well as the

police with a view to arrest those involved. Mafwila and Bernardus Xoagub first

went to Katutura Black Chain to investigate without the police officers. He noticed

that the cards brought to him had some numbers tagged with plastic. Some of

the fake cards looked like those of Barclays Bank, others had the Bank

Windhoek emblem with funny colors. A normal ATM card has sixteen digits, and

when the last six numbers are entered into the system the particular card will be

identified as well as the bank of issue. At the Bank Windhoek ATM machines at

Black Chain, Katutura, Mafwila and Xoagub found a security guard by the name

of Mungongolo who confirmed that there were people who looked like foreigners

whom he usually saw coming with bundles of cards during the early hours of the

morning withdrawing money at the ATM machines. According to Mungongolo

they were not Namibians. Mungongolo told Mafwila that the foreigners looked like

Indians and usually came there driving a Hard Body Double Cab Nissan with the

Registration number N104565W.

[4.2] The counterfeit cards that were brought in by the custodians of the ATM

machines were swiped in the micro reader and live information holders came out.

Joseph Mafwila proceeded and informed his Manager about what he thought

was a syndicate stealing money from the ATM machines. He also told his

27

Manager he would seek the assistance of The Commercial Crime Investigation

Unit’s Involvement in order to arrest the culprits. He approached the

Commanding Officer Detective, Chief Insp. Bampton. A police operation was

arranged to round up the suspects who were illegally withdrawing money. On 6

August 2007 Mafwila asked Mungongolo to give him a miscall on his cellphone

number when he observes the people withdrawing money at the ATM machine.

The police officers were also put on alert. They all came together at one point,

and after midnight Mungololo made a miscall. Mafwila called him and confirmed

that the people were there busy withdrawing money. Mungongolo further told

Mafwila that a driver dropped two men at the ATM machines and were busy

withdrawing money.

[4.3] Three vehicles were used in the operation. Mafwila, was in one car, police

officers were in their car and City Police also had their vehicle, they drove to the

scene at ATM Katutura Black Chain. Police officers entered through the Northern

side exit of the Complex, Mafwila and other police officers entered through the

Southern side. Mafwila saw two male persons, that is accused 1 and 3

approaching the Auto Bank of Standard Bank in front of Pick and Pay. The police

told the two accused they were under arrest. Accused 1 ran away throwing the

money he had on the ground. When a police officer grabbed him by the jacket,

he undressed it and continued running but was caught and brought back to the

scene. Accused 1 was brought back to the scene. Accused 1 was begging the

28

police ‘… please do not arrest me I am poor’. Mafwila requested his colleagues

to drive away from the scene so as not to alert the driver who was still coming to

pick them up. Later they observed an approaching vehicle – the driver was

hooting as he came along driving.

[4.4] Mafwila climbed in W/O Boois’s vehicle, they did not put their lights on. They

drove behind following the unsuspecting accused 2 and parked tightly behind

him. In a short while police officers on foot had surrounded the vehicle from all

directions, and accused no. 2 was arrested there and then.

[4.5] Most of the cards found on the accused persons have one bin number and

reflected the name ‘Mr Daniel’. Mafwila stated what has been found on the

accused as well as at their residence at Napwu Guest House. as follows:

Exhibit D6 and D7 shows the jacket accused 1 was putting on at the time of

his arrest.

Exhibit D10 shows all the cards found in his jacket.

Exhibit D12 shows the scene where accused 1 and 3 were arrested.

Exhibit D35 shows the position where the Avolis machine was found in the

wardrobe of accused 1’s room

Exhibit D47 shows part of the card that were found in the slot that was

removed from the Avolis machine.

Exhibit D48 shows all the cards that were kept in that slot.

Exhibit D49 shows the cables that were used to connect the Avolis machine

29

to other equipment such as laptop and others.

D36 is a scheming device also found in Room 1 occupied by accused 1.

D40 and D41 shows a bag wherein cash N$50 notes and cards were also

found.

D43 shows the cartridges found in the Avolis machine as well as boxes

containing white (blank) plain plastic cards on which no information has yet

been transferred.

D44 and D45 shows blank cards.

D46 shows some cards found in the wardrobe in Room 1,

D51 shows the door of Room no. 1.

[4.6] Accused no. 2: Photo D17 shows the double cab, Nissan Hard Body with

the registration no. N104565W that he drove.

D19 shows the bag that was found in the Nissan bakkie driven by accused 2.

D21 and D22 Passports, photos and passport wallet for accused no. 4 as well as

the money found in the bag retrieved from the Nissan bakkie driven by accused

2.

D23 and D24 shows two knives found in the side pocket of the Nissan bakkie

driven by accused no 2.

D25 shows the cash found in accused 2’s pocket.

D26 shows accused 2 being held by a police officer showing the money in

his pocket.

30

D27 shows the money that was removed from the pocket of accused 2.

D52 shows the door to Room 2 occupied by accused 2.

D53 and D54 shows the box containing US Dollars currency.

D55 and D56 shows the contents of the box with the US Dollars currency.

D57 shows the suitcase containing some Namibian Dollar notes; N$20;

N$10 respectively.

D59 shows cards resembling those of Bank Windhoek found in the wardrobe of

accused 2’s room.

D60 shows various gift cards and other types of cards.

D61 shows cards of different shops.

D62 and D63 shows cards found in room 2.

D66 and D67 shows Namibian Dollar notes lying around there in room 2.

Cellphones and dagga was confiscated from the two rooms. Some

cellphones were found in boxes in rooms 1 and 2.

[4.7] Accused 3: Photo D25 shows the cash found in his pockets. Inside the

Nissan bakkie two keys were found reflecting Napwu Guesthouse, Diaz Street,

Suiderhof. The police operation team together with accused 1, 2, 3 moved to the

accused’s residence at Napwu Guesthouse. All police officers alighted and one

of the two keys opened Room No. 1 wherein accused 1 said he was staying. The

lady found sleeping in Room 1, Lizaan also confirmed it was for accused 1. A

female police officer Shimbulu went in to tell Lizaan to dress herself so that we

31

can go in.

[4.8] The officers later entered Room 1, and according to Mafwila they found

some equipment the names of which he is not familiar with for lack of knowledge.

He however remembers what he called the ‘avolis’ machine. In this machine was

a removable slot packed with cards some of which were already dyed the logo of

Bank Windhoek debit cards. The avolis machine had some cartridges which

Mafwila suspects were used to dye the color on the one side of the cards, while

the other side was still plain white.

[4.9] A letter written by accused 4 inviting accused 1 to visit Namibia was found in

the room. This necessitated a visit to accused no. 4’s residence. It was already in

the morning when the police operation team left Napwu Guest House to accused

4’s residence. On arrival, some police went inside the house. Mafwila and other

members of the police remained in their vehicles. It happened that all goods

confiscated at Napwu Guest House were loaded on the vehicle which Mafwila

was driving. The moment they arrived at accused 4’s residence almost all the

cellphones they confiscated at rooms 1 and 2 at Napwu Guest House started

ringing at the same time in different ringtones and Mafwila decided to attend to

the caller. Mafwila answered one cellphone where the caller said he was Raja

and wanted to speak to Shiva (accused no. 1) but was tricked that he had left for

town. The caller gave a message saying he was already on board the plane from

Johannesburg bound for Hosea Kutako International Airport and he needs to be

32

picked up. The same caller also sent an sms to confirm his arrival. Later the

same caller wanted to speak to Alex (accused no. 2) but was also tricked by

Mafwila to say the guys and their girlfriends had left for town.

[4.10] Mafwila, W/O Boois, Sgt Esterhuizen and accused 1 left accused no. 4’s

residence to the Airport. At Hosea Kutako Airport they spoke to one of the

supervisors who then allocated them with an office where they sat and waited for

the arrival of Raja from Johannesburg. When the plane was about to land Raja

called again to confirm whether Shiva was already at the airport – but Mafwila did

not answer.The plane landed, and as passengers were walking into the Airport

building accused 1 whom the caller called Shiva pointed out Raja to Mafwila and

the two police officers. Mafwila asked the female immigration officer to quickly

help Raja stamp his passport and allow him through as they needed him urgently

and that was done. Raja now accused no. 5 did not receive his luggage. They

drove back to Windhoek without accused 5’s luggage. On arrival they found all

police officers who participated in the arrest operation were back at Commercial

Crime investigation Office. Also present were accused 1, 2, 3, 4 and 5 – the one

that they brought in from the Airport.

[4.11] Mafwila went back to his workplace and later the police brought all cards

that were confiscated at Napwu Guesthouse and those found in possession of

the accused to Bank Windhoek for swiping purposes in order to retrieve all the

33

information on them. Mafwila took the cards and handed them over to the Bank

Windhoek Card Division.

[4.12] During cross-examination by Mr Namandje, Mafwila said he cannot specify

which cards were found on a particular accused because they were many. He

stated he was the complainant on the matter on behalf of Bank Windhoek

Namibia. He said at the time of arrest, accused 3 was found with cards which

after being swiped were found to be faulty. They had features resembling those

of Bank Windhoek. All those cards formed part of the fraudulently produced

cards which is his concern.

[4.13] During cross-examination by Uirab, Mafwila stated that accused 4 was

arrested at his residence while no. 5 at Hosea Kotako Airport. He stated that

exhibit ‘D’, passport photos found in the bakkie driven by accused 2 had no. 4

reflected on them. According to Mafwila 23 cards were received from custodians,

447 were found at Napwu Guest House and they totaled to 680 fake cards. He

stated that there was a reputation risk, and potential loss related to cards with

features similar to those issued by Bank Windhoek. He said that police officers

Mungabwa and Shimbulu wrote down what was found in the rooms at Napwu

Guest House. Room 1, for accused 1 photos 38 and 46 shows the police found

cannabis inside there. Room 2 was for accused 2 and inside there, police found

U$94 000. On photos 59 and 62 faulty cards as well as one fake Bank Windhoek

34

card were also found by the police there.

[5] Johannes Albertus Husselman testified that in 2007 he held the rank of Staff

Officer (Chief Inspector) stationed at the Police National Headquarters, and

therefore not part of the Commercial Crime Investigation Unit. After the arrest of

accused 1, 2, 3, 4 and 5, Det. Chief Insp. Bampton requested him to help the

team of Commercial Crime investigators in his absence. He then proceeded to

take photos of all the arrested accused’s belongings and compiled a photo plan

(exhibit E).

[5.1] The witness read the document into record as follows:

Page 2 a double cab Nissan bakkie N104565W; page 3 a white Volkswagen Polo

car N35352W; page 4 cellphones of the accused used to receive data of bank

details for overseas clients; page 5 laptop used to capture data and process it on

to the magnetic stripe writer and the software found in possession of the accused

at their residence; page 6 first photo is the magnetic stripe writer found in

possession of the accused used to write data onto the blank debit cards, credit

cards; page 6 the second photo a printer allegedly used to print images onto the

blank bank cards; point B a cardholder in which blank cards are loaded; page 7 a

close up of point B, and the empty (blank) cards found in possession of the

accused; page 8 ink cartridges for the image printers, photo thereafter shows the

label printer used to print final images onto the cards; page 9 first photo label

35

printer used to do final printing onto the debit and credit cards; page 9 second

photo shows the rear side of the label printer with used cartridges; page 10 first

photo some debit credit cards found on the accused used to withdraw money

from the ATM machines; page 9 second photo point C a genuine Bank Windhoek

card among other fraudulent cards; page 11 first photo is the note counting

machine found in possession of accused no. 5 at Hosea Kutako International

Airport; page 11 second photo a violet light with plastic ribbons found in

possession of accused no. 5; page 12 money found in Room No. 1 at Napwu

Guest House; photo thereafter shows money found in room no. 2 at Napwu

Guest House; page 13 first photo shows the money found in white Nissan Double

Cab; page 13 second photo shows money found in accused no. 4’s room; page

14 first photo shows passport for accused no. 1 Pugalnanthy Amirthalingam;

page 14 second photo shows copy of passport for accused no. 2 Thulasithas

Satheeskumar; page 15 first photo shows copy of passport of accused no. 3

Sarangan Pararasasingam; page 15 second photo shows copy of passport for

accused no. 4 Travolta Tjuiju; page 16 shows copy of passport for accused no. 5

Abdul Kader s/o Jamal Mohamed. The photos taken were indicated to

Husselman by Det. W/O. Zambwe, W/O. Ipinge and other members of

Commercial Crime Unit. Some of the photos were taken as he observed them,

and the photo plan was compiled a week after the arrest of the accused on 7

August 2007, before accused no. 6 was arrested.

36

[5.2] At some stage Husselman walked from Commercial Police Offices to

Namdeb building across the street and when he looked at Kingpie he saw and

recognized accused no. 6 from the photos he took at Napwu Guest House. He

called W/O Zambwe to come down at Kingpie which he did and on arrival he also

recognized accused no. 6. These two officers had an opportunity to look at the

photo found among the belongings of the already arrested accused at their

residence in Suiderhof where they saw accused 6. That was how they were able

to recognize accused no. 6 at Kingpie and Zambwe took him to their offices and

arrested him. Accused no. 6 was at that time the only suspect who was not yet

arrested. On the photo found among other belongings accused no. 6 is standing

with Ms. Namibia of 2007 (exhibit H).

[5.3] From here Zambwe and Husselman took accused 6 to his room at Safari

Hotel, they went through all his luggage and confiscated the following items

related to the offences being investigated:

One laptop Sony VO serial no. 00144017417107; one laptop Funitsu Life book

serial no. R5Y00011; one Lexar USB Flash ram a memory stick or removable

disk and one Nokia N95 serial no. 352; one Nokia serial no.

352255/01/485239/0; one video camera; a canon serial no. 535322343620; one

Sony Cyber shot serial no. E 5825. All these items were handed to the police by

accused no. 6 to W/O Zambwe. (Exhibit F list of article found in accused no. 6’s

room).

37

[5.4] Husselman and Zambwe went to Scheepers, one of the accused no.6’s

friends at House No. 366 Heidenweg, Khomasdal, Windhoek. They went into

Scheepers’s room and he showed them a plastic bag which accused no. 6 gave

him for safekeeping. Inside this bag they found a scanning device/card reader;

cables and a parcel with silver rappings and red tapes around it. They opened it,

they noticed it is a card holder full of different types of unused gift cards such as

next gift card and Devon house gift cards, with magnetic stripes at the back.

(Exhibit 1 Parcel Gift cards) 2 Scanning Device and Black Bag and piece of wire.

[5.5] During cross-examination he said he was not involved with the investigation

of the matter at the time the various accused were arrested on 7 August 2007.

During cross-examination by Mr. Uirab, counsel for accused 4 and 5 stated that

he took the photos from different angles. All the items had been placed on the

table for publication by the NBC, they were photo taken by him. Photos were

taken before the arrest of accused no. 6. Husselman stated that accused 5 only

arrived and was arrested after all the other accused have been arrested and their

belongings confiscated. The details of his photo plan was provided to him by

W/O. Zambwe and Ipinge. He was not part of the arresting operation but only

assisted The Commercial Crime Investigation Unit with the investigation at a later

stage.

[5.6] During cross-examination Husselman said after all accused’s rooms were

38

thoroughly searched and their belongings confiscated he found fraudulent cards

hidden in the cupboard in one of the rooms occupied by the accused. According

to him these cards may have slipped out of sight at the time of the search

because it was just a few of them.Husselman stated that Mafwila requested the

Card Division to find out whether the confiscated cards were used to withdraw

money at any of the Bank Windhoek ATM machines or not. A Bank record

related to all the transactions on the confiscated cards, was then secured.

[6] Samuel Zambwe testified that during 2007 he was a Detective Warrant Officer

attached to the Commercial Crime Investigation Unit in Windhoek for four years.

In total he worked for the Namibian Police for 14 years. After Joseph Mafwila had

reported some unlawful activities at the ATM machines at Katutura to Det. Chief

Insp. Bampton the latter tasked him to arrange for an operation to find out what

was going on. On 6 August 2007 he altered other members of the Commercial

Crime Investigation Unit, they came together with Joseph Mafwila, Bernadus

Xoagub and between 20h00 and 21h00 the two groups way laid the suspects in

the area. They were already briefed about time to be at around 00h00. They

divided themselves into two groups, one group waited on the side facing

Independence Avenue, the other was waiting behind the building.

[6.1] It had been arranged with the security guard and immediately he saw the

suspectst Mafwila was alerted by way of an SMS or a miscall. This was between

39

00h00 and 01h00. From where they were hiding they could see two male

persons who later turned out to be accused 1 and 3 at the ATM machines busy

withdrawing money. When the suspects finished withdrawing at Bank Windhoek

ATM they started walking towards Standard Bank ATM machines, and that is the

time this witness Sgt. Esterhuizen and W/O. Boois moved in and approached

them. They produced their police appointment certificates, stopped the suspects

and introduced themselves as police officers.

[6.2] Accused no. 1 started to run away. Esterhuizen grabbed him by the jacket,

but he undressed and left it in Esterhuizen’s hands and it fell on the ground. The

money and cards that were in the jacket’s pockets fell out and scattered all over.

The two offices chased accused 1, until Esterhuizen caught him. He was brought

back to the scene where other officers were standing with accused no. 3. The

accused are dark brown skinned, looking like Indians. Accused 1 and 3 were

handcuffed. Zambwe told the two accused that they were police officers busy

investigating alleged illegal withdrawals of money and were searched. Both

accused 1 and 3 were each wearing a trouser with more than four pockets. Two

pockets at the back, two on either side and other small pockets. All the pockets

were fully loaded with money and cards. These were removed and counted at

the scene of crime.

[6.3] The officers realized that the other suspect who dropped them may already

40

be on his way to come and fetch them. They went to hide inside the building with

accused 1 and 3 to wait for the driver. It only took them twenty to thirty minutes

when they saw a Nissan bakkie approaching, and Zambwe instructed that it must

be blocked from behind after parking, that was done. Accused 2 was the driver of

that vehicle and Zambwe introduced himself and his team that they were police

officers, investigating the withdrawals of money at ATM machines. With accused

2’s permission the Nissan bakkie was searched, and the following were found

therein:

A handbag containing cards similar to those found on accused 3; a bundle of

Namibia Dollar notes and other lose notes; Euros; Botswana Pulas; two big

knives in the side pocket of the passenger’s seat; CD disc; some key holders

written Napwu Guest House. On realizing this the officers immediately left the

scene to search the accused’s residence. City Police were also there. The

Nissan bakkie was booked in at Katutura Police Station. At Napwu Guest House,

Zambwe introduced himself and his team to the security guard on duty and they

were allowed to drive inside the complex. He requested each of the three

accused to indicate the room he was occupying which they did. Accused 1

pointed Room No. 1 as his residence while accused 2 pointed Room No. 2 as his

residence.

[6.4] Zambwe instructed James Mungabwa and his assistants to search Room

No. 1 and W/O. Boois to search Room No. 2. Sgt. Shimbulu assisted by Lilungwe

41

wrote down all exhibits found in these rooms. As the officer in charge of the

Operation Zambwe had to move from one room to the other to make sure that all

was properly being done. He observed that Room 1 appeared to be the

production centre where everything was taking place. He concentrated much on

Room no. 1 where most items such as laptops; cards; printing cards; printing

machines; DVD’s and other exhibits were kept. In Room 1 the following items

were found kept there: card printing machine; laptops; cards; DVD’s; Evolis

machine; 4 sealed boxes with white plastic blank cards; x 5 HP laptop serial no.

CNU 5492YY9; HP compact NC 6230 and Notebook computer serial no. CNU

5942YY9 Lexar 4GBK flash drive; Sony VIVA 10 computer serial no.

2820097170038480; Lexar 4GB flash drive was found with accused 6; foreign

debit cards; master card; visa card; debonair card; diner cards. All the credit and

visa cards which appeared to be either those of Bank Windhoek or First National

Bank of Namibia were all fake cards because the information on their magnetic

stripes showed something else. All in all cards before court were retrieved from

Pick and Pay; Napwu Guesthouse; Mr Pumba of Standard Bank; as well as at

Bank Windhoek ATM machines.

[6.5] During cross-examination Zambwe was asked why the officers were not

able to record the money each of the accused already had in his pocket and what

he had withdrawn from the ATM machines shortly before the arrest. The officer

said that was not possible because of the circumstances that prevailed and in

42

particular the officers did not know beforehand what to expect or who it was that

was suspected of foul withdrawals at ATM machines.

[6.6] During cross-examination Zambwe testified that they did not only look for

evidence linking each individual to the commission of the alleged offences, but

they noticed and found that the whole exercise was a syndicate. Accused 4 was

found with equipment he was safekeeping for the accused. He wrote an invitation

letter to accused 6 and his passport photos were found in the Nissan bakkie

driven by accused 2. This bakkie used to drop accused 1 and 3 in the middle of

the night at Katutura ATM machines. It is for this reason that Zambwe found that

accused 4 was also linked to the syndicate.

[7] A P Baisako testified that in August 2007 he was a Detective Sergeant at

Commercial Crime Investigation Unit in Windhoek. On 8 August 2007 he booked

out accused 5 and took him to Hosea Kutako Airport to collect his luggage

comprising of one bill counting machine, two ultra violet light machine, used to

identify security features, and the authenticity money in the form of notes and of

documents. It was his co-accused who asked him to bring along the two

machines to Namibia and they paid for his flight.

[8] Gerson Russel Boois testified that in August 2007 he worked as a Detective

Sergeant in the Commercial Crime Investigation Unit, Windhoek. On 7 August

43

2007 he was together with the police officers Zambwe, Mungabwa, Mafwila and

Ipinge during the operation that saw the arrest of the accused at Bank Windhoek

ATM machines, Katutura, Pick and Pay Black Chain. The accused were busy

withdrawing money from the ATM machines. He corroborates the evidence of the

other police officers on what happened during and after the arrest.

[8.1] Boois testified that it was him who opened the wardrobe in whose top

apartment he saw two suitcases and a small white box. He first took out the white

box and on opening it he found bundles of US dollar notes. He also found South

African and Namibian dollars in one of the suitcases. He does not recall what he

saw in the second suitcase apart from clothes. He also found bundles of cards

and a Bank Windhoek debit card. From here the witness escorted Zambwe to a

certain house in Katutura where accused 4 was arrested. He later joined Mafwila

and Esterhuizen with one of the accused, they drove to Hosea Kutako Airport

where accused no. 5 was arrested out on arrival.

[8.2] During cross-examination he said the circumstances of the operation was

very fast such that there was no time of recording of the time the officers stormed

on the accused persons.

[9] James Simasiku Mungabwa testified that in August 2007 he worked as a

Sergeant in the Commercial Investigation Unit, Windhoek. This matter had seen

four to five investigation officers at the time he took over. On 7 August 2007 he

44

was part of the police night operation at Bank Windhoek ATM machines in

Katutura headed by W/O Zambwe. They came at 20h00 and way laid those who,

according to the ATM security guard withdraw money in the middle of the night.

[9.1] According to Mungabwa the officers made two grounds one on the southern

and the other on the northern side of the complex. When the groups stormed the

unsuspecting accused 1 and 3 unwittingly started running towards the other

group throwing money on the ground. Mungabwa grabbed accused 3. Zambwe

and Esterhuizen caught accused 1. The accused were body searched, monies

and bank cards were found in their pocket, and these were photo taken by Mr

Xoagub. The information they had showed that the suspects were usually

dropped at the ATM machines. The two groups retreated back to their hideouts

waiting for the driver. Shortly thereafter a white Nissan pick up arrived and

parked next to the ATM machines. Police vehicles blocked him and it was

accused 2, he was arrested.

[9.2] Mungabwa confirms Zambwe regarding the whole exercise. He wrote down

everything that was found in room 1, these were: scanning device; DY computer;

Laptop computer; switch power supply; white movable socket; 25 OV 16A

adaptor; one Motorolla cellphone; UK notebook; one adapter charger; one

Motorolla adapter charger; four boxes of unused cards; one navy rucksack; one

17 Casio EZ label printer; two boxes of quality rubber bands; one monocom

45

ribbon; one green trouser with N$50; one khaki shirt with N$600; four Bank

Windhoek cards written Mr Daniel; Bank Windhoek; three cable color printers;

one square box; one ballie of dagga; one Nokia CD; sixty three fake Bank

Windhoek cards; one Samsung cellphone; batteries and charger; one

microphone; six color ribbon packs; seven mail box cards; three aqua master

cards for Mr Kanaan; twelve FNB Visa electronic cards; six gift cards; four DK

cards; one Sensoran trip travel ticket; twenty nine CDs; one green trouser with

six Bank Windhoek cards; one rim premium photo paper; twenty eight aqua

Master cards for Sugastan; four visa cards; one brown knife with black pouch;

three Bank Windhoek cards; three Nokia phone head phones; one computer

cable blue and silver in color; a white box with ten Bank Windhoek cards; five

DVD; seven software; one browser ET 80; one Casio EZ label printer; one

Kingmax Micros; three 9 ml tap; one pick photo CD; twenty thousand Namibian

dollar notes; twenty software CDs; four easy safe printer cleaning cartridge; five

empty tango starter pack; one Sony empty box sight by short camera; one AASK

card two memory sticks; two 9 mm white tap.

[9.3] According to Mungabwa all cards found at the scene of arrest, Napwu

Guesthouse, on the bodies of the accused during the search were mixed up.

When he was finished with Room 1 he went to Room 2 for accused 2. He saw an

amount of N$80 000 taken out of the wardrobe. He also saw a letter written by

accused 4 with all his details inviting accused 6 to visit this country. The officers

46

went to Katutura where he stood outside while others went in to arrest accused

4. He was not part of the officers who arrested accused 6 at Hosea Kutako

Airport. He escorted Insp. Sandema taking all the money to the Bank of Namibia

strong room, where it was stored in a small safe inside the strong room.

[9.4] Chief Insp. Bampton kept the key to the small safe. During cross-

examination the officer confirmed that at accused 4’s room the officers only found

and took his passport and an amount of N$9000 Namibian dollars. According to

Mungabwa a CCTV camera at Gobabis showed a Polo Sedan vehicle driven by

accused 4 coming to park a few metres away from the ATM machines. Accused

1 disembarked and started to withdraw money while accused 4 remained seated

in the vehicle. Later accused 4 also got out and went to a direction away from the

machine, and came back to the driver’s seat and they drove away. According to

this officer the evidence shows that accused 4 was together with the other

accused persons.

[10] Bruce Bronze Scheepers testified that he worked for Safari Hotel in 2007.

Although he did not personally book in accused 1, 2 and 6, it was him who

allocated them into their respective rooms. After they got settled they asked this

witness to show them some places of entertainment, and they started clubbing

(going to various clubs for drinks together). Later in the day, on the first day when

they went out for drinks accused no. 6 dropped him at his house. While they

47

were at this resident accuse 6 gave him a plastic bag to keep for him, which he

did. When Scheepers later opened the plastic bag, he found a small black bag

inside containing a swiping device (machine). In court he recognized the machine

as exhibit 2. In the same plastic bag there was also a plastic brown bag with a

sealed parcel containing bundles of gift cards (exhibit 16) before court.

[11] Xavier Cupido testified that in 2007 he was working at Bank Windhoek at

Hosea Kutako International Airport. He first came to know accused 1 and 2 who

later introduced him to accused no. 6 as a friend. Accused 1 and 2 asked him to

exchange Namibia Dollars in Euros, and US Dollars but they did not have

receipts or proof of how they brought that money into Namibia. The accused later

exchanged Namibian Dollars to South African Rands on several occasions, but

he could not recall the dates. Accused no. 4 exchanged Namibia Dollars only

once when he was flying to South Africa.

[11.1] Towards the end of 2006 but is not sure of the exact date accused 1, 2 and

4 approached him asking to change Namibian Dollars into Pounds, Euros, or US

Dollars. He refused to assist them because they were unable to provide proof

that they have indeed brought foreign currency into the country for them to be

able to take it out again. He only assisted them to exchange Namibian Dollars

into South African Rands, for which they got service on several occasions till their

arrest in August 2007.

48

[11.2] During cross-examination Cupido confirmed that he saw accused no. 4 at

the bank and at clubs several times with accused 1 and 2, and he saw accused

no. 6 only a few weeks before they were arrested. He stated that accused no. 6

was introduced to him by accused 1 and 2 as their friend. He said when accused

1 and 2 came in to exchange money they had cash bundles of Namibian Dollars

in a gym bag. He never saw accused no. 5 except in court. At one time accused

4 together with accused 1 and 2 went to exchange money at the Airport.

[12] Brenda Jauhara Katupose testified that in 2007 she worked at KFC Central

Café Restaurant at Livingstone Arcade in Southern Industrial. It caters for drinks,

breakfast, lunch and dinner. It is from her workplace that she came to know

accused 2, 4 and 6. They would normally come between 16h00 to 17h00. They

were regular customers as they used to come there daily. Accused no. 2 used to

settle the bill and they used to give her some tips (some money). She used to

visit the accused at their rented Guest House in Suiderhof. Many girls also visited

the accused. She latter became a friend to accused no. 4 who told her they were

Indian brothers. She also identified accused 2 and 4 on the photos handed in as

exhibits. Accused no. 2 at times came with a Laptop, they would sit while he was

using it. They also visited La Dee Das and Funky Clubs together with the

accused. This witness did not deviate from what she testified in her evidence in

chief.

49

[13] Bernardus Xoagub testified that he works for Bank Windhoek as a forensic

investigator. On 7 August 2007 he had his private digital camera with which he

took photos of the scene on the day the accused were arrested exhibit D (set of

photographs 1 to 89). He was requested by the police to photograph the scene of

crime. The photos were taken at Bank Windhoek ATM machines, Black Chain,

Katutura, as well as at their residence. He downloaded the photos on the M drive

at his workplace, and were color printed. One of the police officers recorded them

accordingly

[14] Theodore Schoeman testified he is the Chief Executive Officer of the fifty two

years old business, Schoeman’s Offices Systems since 1970. This company

started working with the identification of cards, banking cards approximately

twenty five years ago, and till today they are still the leaders in the market of

identification systems. They were running the Bank Windhoek Card Centre until

they got a bigger Card Centre, and he was the president of the Stock Exchange

that worked with financial institutions at all times. They are currently still

continuously doing business with the financial sector. He was part of the team

together with Professor Tanna Pretorius that set up the draft electronic

transactions for Namibia. He is also a member ICT alliance, the governing body

for the Computer Society for Namibia. Before obtaining a police statement from

him, the Commercial Investigation Unit brought equipment asking him to identify,

check, verify and test to explain what the various bits of the equipment were used

50

for and to compile a report thereon. In particular this witness was asked to find

out whether the equipment is used to create cloned bank cards. After looking at

the equipment he told the Commercial Police officers that the equipment they

brought to him is indeed used to clone banking cards. This witness then

proceeded and gave the following details regarding the said equipment:

The magnetic slide reader called AMC and the writer exhibit 4.

The card readers are used to read magnetic cards and to write onto the

magnetic cards on the brown stripes on the back of the banking cards.

The two card readers have the same function. Cards are swiped through

and the clients information at the back of the card would appear and be

read on the computer (the card reader). The information would then be

sent from the computer to the reader and would be encoded for future

reference accordingly. The information on the cards can also be read at

automatic teller machines or at points of sale equipment in supermarkets.

The reader can be connected to any computer but can only be used at a

point of sale at a supermarket or shop or at an automatic teller machine.

[14.1] When a reader is connected to a computer it is able to encode the

information on the magnetic stripe on to the back of the banking card. This

information cannot be seen because it is magnetically encoded on track one and

three on the back of the card. Encoding means magnetically writing information

on the back of the card.

51

[14.2] Printed on the front of a card is a number and sometimes even the

customers name. On the back of the card there is a white strip and this is where

the two devices comes in. The label printer prints an identification or number on

the little white label which is stuck at the back of the card and is used for

authentication in supermarkets and or purchasing arena. It cannot be used at

ATM machines because the information is all read on the back of the card. This

number at the back of the card is called an identification and or CSV number,

and is required during internet purchasings. The CSV number is the last three

digits on the white strip printed by the label printers.

[14.3] If the reader is connected to the computer and the card is swiped through,

its number will be shown on the screen of the computer. The instruction would

then be given to write the number onto the card which would then be encoded on

the card and displayed on the screen at the same time. A special program comes

with the card reader, writer on the computer. This allows a person to read and

write the cards. The technical department (engineers) at Schoemans verified the

functionality in his presence and they found that the two readers were in good

working condition. They verified by doing the testing switching on in his presence

and concluded that the equipment was indeed in a good working order.

The P Touch, also called ‘Brother’ black and purple in color is a labeling

machine which you can put numbers or letters of the alphabet. It will then

print these on the thin white strip which one can stick at the back of the

52

banking card or anywhere else. These machines are used to label

computer cables because cards on them are normally printed by a special

machine. The labellers are often used on fraudulent cards to print

numbers on the back.

The Casio Label it. White labels are manufactured for the use of this

machine, and it would then print in black on them. This stand alone device

is used separately because its original purpose was to label cables,

computer cables, the reason why they have to be (mobile) taken along.

According to this witness in 2007 a reader; AMC and writer would cost

between N$3000 to N$4000, meaning they would as of now be less

expensive. The Labeling devices was previously costing N$2500.

The Note Counter on which piles of notes of any currency are put, fed

through its feelers and counted. The total amount thereof is then displayed

on the screen. The pile of notes should be of the same value. These are

used in banks and in 2007 one could be bought between N$5000 and

N$6.000. Although not many, but were already available in 2007.

Two Note Verifiers. These devices determine the authenticity of notes,

and they use electricity. It has a UV light (ultra violet light) that shines on

the notes showing the printed ink which cannot be seen with the eye. This

device can also be used to verify drivers licences which in the SADC

region have UV printing on them. The reflector made of white glass at the

bottom insures that the ultra violet can be read properly. He estimated the

53

price of the device in 2007 to be between N$800 and N$1000 and were

then already available in Namibia.

The Card Printer brand name EVOLIS machine standardized in the USA

and Europe, is used for printing the standard size of identification cards

and banking cards. In court while holding the device, the witness pulled

out some completely white clean and clear cards with magnetic stripes at

the back. The way in which the magnetic stripe is encoded and read is

also standardized throughout the world. The clean and unencoded cards

would then be placed inside the cardholder, fed through the machine,

printed and exits on the other side. There are machines that can print and

encode at the same time. However, the one before court does not have a

magnetic stripe encoded. The device still had a black ribbon in, but could

also use a color ribbon to do full color printing. He pulled out full color

printing ribbons from the envelope.

[14.4] According to this witness the EVOLIS machine is static, the card remains

in the holder, black is first printed on it, then magenta, then yellow, then comes a

little over coat on top to protect the printing on the card from rubbing off. The card

remains static, the ribbon moves. There is a special printing hat which is a

heated head that moves across the ribbon and the card with the ribbon in

between and transfers the color on the card. The witness opened an envelope

and found several ribbons in black and white and black. The cards are white. In

54

the current set up the printer is connected to a computer and uses a USB. In the

olden days a parallel port used to be connected to the computer. The information

that gets printed on the card comes from a special card printing program on HP

laptop (also among the equipment) which sends the information to the printer.

[14.5] The EVOLIS machine does not only print images, numbers and letters, it is

a full color, full image printer. It can print in four colors, graphics and alpha

numeric on the front and on the back of the card. It is a single sided printer, if

something has to be printed on the back, the card has to be turned around. He

took an Aqua card from the bundle, looked at it and said it was an image, a copy

of the original banking Master Card. It has a card number, a name and the period

of validity of usually between one to five years. He also took out a Smart Card

which he said was brought in the banking sector by an organization called EMV,

which is a Hico Pay master card, and Visa EMV. The computer chip on the Smart

Card emblem (the gold block) is an actual computer chip put there to prevent

fraud through ometrics. It cannot be read by anybody and has a high level of

security on it.

[14.6] According to Theordore Schoeman, typically one would have a thumb

print, photograph, an iris eye or one of the ometric images, normally stored on

the card for additional security to ensure that the image cannot be normally

copied on the max stripe readable by anybody. Although the quality may not be

55

exactly the same the image can be transferred on to the EVOLIS printer device

by scanning it in or copying it the card which is then put in the printing program.

The printing program is normally sold with the Card Printer such as the EVOLIS

device, Data Card or a Zapara, and is also available on internet. The image on

the computer gets to the card printer via a special card printing program from the

HP Laptop. There is what is called the set up portion phase of the program where

images, names and numbers would be manipulated and placed on the card

anywhere, where one would like them to be. Then comes the Production Phase

where that information is sent to the Card Printer via a cable and the complete

image that has been finalized on the computer is then printed on the card.

[14.7] The sealed plain blank white cards in the boxes have the max stripe (Hico

magnetic stripe) on the back. On their side appears the name Hico 250; an

encoding methodology on the max stripe cards. Hico cards are used in the

banking industry while Loco cards are mainly used for access control. ln Namibia

Shoeman’s orders the cards from South Africa or Minnesota in the United States

for supply to the banking sector. They don’t keep them as standard stock. Bank

Windhoek was the only Card Centre, while Standard Bank, First Nation Bank and

Nedbank get their cards from South Africa.

[14.8] The card reader and writer are very accurate devices, they use a check

digit, a calculation done on all numbers except the last one. If the check digit is

56

not correct the swiped card will be rejected, and this seldom occurs. On the HP

Laptop he came across a little note from somebody on the internet saying “…I do

not have to send you samples of banking cards because my stolen information

works”. The rest of the information was normal with a program for the Card

Printer. On one of the photos where all bits of equipment were photo taken

together he was able to identify the HP Laptop, Note Verifiers, the EVOLIS

Printer, Label Printer, and the Max stripe reader.

[14.9] During cross-examination the witness confirmed that some of the

equipment brought to him by the police are indeed used to clone cards which is

an illegal exercise. He testified that a lost, misplaced banking card is replaced by

the issuing Financial Institution by way of issuing another card. A duplicate

cannot be secured for a lost card, and neither is the reproduction of banking

cards allowed. Authorization by a banking card holder that her card be cloned or

reproduced remains illegal, and is not allowed at all.

[15] Alfred Cedric Swart testified that he works for Standard Bank, South Africa

attached to the financial crime control and is based in Johannesburg. He heads

the Investigation Department of the Credit and Debit Card Unit. His duties entail

the prevention, detection and investigation of credit and debit card fraud within

South Africa and elsewhere across the borders where their cards have been

utilized. He has thirty one years investigation experience, and he concentrates on

57

the investigation of counterfeit credit cards, electronic withdrawals, internet fraud,

purchasing of goods in the absence of cards and analyzing fraud trends, and

preventing them from continuing.

[15.1] Swartz stated that a genuine Bank Windhoek card has a hologram (a

dove) if the card is turned the dove will flutter in a three dimensional way looking

as if the bird is flying. A BIN number is a bank identification number. In the case

of Bank Windhoek the BIN number is 4658. All Visa cards start with the number

‘4’, Master card starts with ‘5’, American Express starts with ‘37’, Diners Club

starts with ‘36’. The Bank Windhoek BIN number is thermal printed, meaning it is

almost like flat ink, as such the numbers cannot be felt on the card itself. He

stated that Ms A N Petrus’s card was genuine.

[15.2] He testified that he went through the bundle of 50 Bank Windhoek cards

(01) and found that 48 had the same number 46587256183846478 all expiring

on 04/2009, the holder of those cards, Mr Daniel, all had the same signature at

the back. The whole bundle are counterfeit cards. The remaining 2 cards were in

the name of Mr Y. Jhon and they share the same number with the 48 cards of Mr

Daniel 465872568384, but these two cards end with the number 2346 expiring

on 03/2008. These are also generated counterfeit cards

58

[15.3] Referring to the 42 FNB cards marked (FNB 01) he found that the front

card is numbered 4790374785671 the same number appears on the back of the

card in thermo printing to the right of the signature panel ending in four digit

4689, valid from 08/2004 to 8/2009. After these numbers appeared another three

numbers 093, which is called the CVC 2 (the cheque verification code). All the

other 41 cards have the same reference number. He stated that the cards were

not FNB cards, but were computer generated or enhanced counterfeit debit

cards.

[15.4] In regard to the bundle of 35 Aqua Master cards, all in the name of Mr. S.

Sugathan. They all have the same account number 55706842 95703088

unsigned, validity period 08/2006 to 10/2008. He stated that they were all

computer generated cards. Regarding the Evolis Printer he testified than an

original bank card would be scanned on a scanner connected to a laptop or

computer. Once the image is downloaded on to a laptop it can then be

manipulated, resulting in a computer enhanced card. The manipulation could be

by removing certain numbers, by means of a computer copy paste, and one

would generate and place other numbers instead of the embossed number that

will now be scanned on the card. If one is happy with the name of the new card

the next step would be to place white plastics into the Evolis machine. The

scanned image on the front and back of the card which has now been altered on

your computer or laptop will now be printed out on the Evolis Dual sided

59

machine. Hereafter a normal white plastic card with a magnetic strip already on

the back but without any data would be created. Then follows the phase of the

card reader/writer. This device is able to read what is on the back of the magnetic

strip and can also write on the magnetic strip. The data from the computer linked

to the reader/writer can then be downloaded to the card. A scheming device that

was downloaded with a lot of card track data already on the computer could link

all the data to the laptop.

[15.5] The numbers on documents found on the Lexar USB 4G flash drive

belonging to accused 6 are the same as those found on cards that were found by

the police at the accused’s residence at Napwu Guest House. This is a clear

indication that accused 6 is part of the rest of the accused and that they were

indeed operating and networking together.

[15.6] I have no doubt in my mind that the accused operated as a group having

members at various places of interest who secured the necessary data that was

required. Van Wyk’s evidence is that the gadget 2.0 USB memory card reader

that accused 6 had, could be connected to a computer and used to either view

pictures from a memory card of a camera, or copy the same pictures to

thecomputer.

Vickers’s evidence regarding how the data on bank cards was secured, is that

60

the details on bank cards was stolen at petrol stations in the United Kingdom. A

pinhole camera was placed directly above the point of sale terminal to capture

the PIN numbers while another device camera was placed inside the point of

sale itself to captured data on the magnetic strip. The evidence of Swarts

confirms that such is indeed the way a syndicate operates.

[16] Looking at the totality of the evidence placed before court, accused 6 used

his gadget to make the process of cloning cards more easier by securing and

availing the electronically stolen BIN and PIN numbers belonging to unsuspecting

victims.

[17] The evidence of Emmerentia Farmer and Izaan Wagner was that they were

friends to the accused. They testified that at some stage while at Napwu Guest

House they saw accused 1, 2 and 3 locking themselves in Room 1, (occupied by

accused 1 the fugitive) the so-called ‘Production Room’. The images of three

licences belonging to accused 2 appeared on the hard drive of the HP Laptop

found in Room 1. Immanuel Erishi, the Senior Immigration officer’s evidence is

that the stamp of 1 or 7 June 2007 on page 14 of accused 2’s passport was

issued as an extension of stay. Simon Mungongolo testified that he saw accused

2 and his friends withdrawing money at the ATM Pick N Pay Katutura on 6 June

2007. The above corroborative evidence successfully displaces any assertions

61

that accused 2 was not in the country on 6 June 2007 nor that he only met other

accused in the cells after their arrest.

[18] Mr Pumba Muundjua testified that he is a forensic investigator at Standard

Bank, Namibia. He received two bundles of cards of 10 and 39 ‘exhibit 20’. The

cards in the bundle of 10 were Bank Windhoek debit cards in the name of Mr

Danial and have the same 16 digit number on their face. The bundle of 39 cards

had a mixture of Next (yellow and black orange), Monument, 5 HDFC Bank cards

in the name of Mr Subramaniyam, 3 TK, Max, 3 Top-Up, 2 Capital One for Mr D

C Raman, 3 Aqua in the name of Suganthan and 16 FNB debit cards with the

same account number. The numbers on the face of each card differed from the

ones encoded on their magnetic strips. These sets of cards came from the same

source as those found on accused 1, 2 and 3 at the time of their arrest; those

cards found in Rooms 1 and 2 at Napwu Guest House as well as the cards

documented on ‘exhibit O’ because of their identical features. Mr Muundjua was

also given another set of Next gift cards ‘exhibit 21’, recovered at BP Van der

Walt Service Station. These cards are the same with those found in the pack

‘exhibit 1; which accused 6 gave to Mr Scheepers for safe keeping. All

indications are that all the fake cards come from the same source.

[19] For the determination of the guilty of the accused on this matter, I find it

necessary, having regard to the available evidence to answer the following

62

pertinent questions which were raised during the trial:

[19.1] Did the accused before court know each other before their arrest or did

they only do so thereafter.Simon Mungongolo first saw the accused at Bank

Windhoek ATM Katutura Pick and Pay during the morning hours of 6 June 2007.

The same group returned to the ATM on 7 June 2007. On 6 June 2007 during

the morning hours Simon Mungongolo saw accused 2 and his two foreign

colleagues withdrawing money at Bank Windhoek ATM machines using a bundle

of cards while accused 4 stood watch behind them. Mungongolo also heard

accused 4 speaking Afrikaans to passerby’s and at the same time telling his

foreign friends what the passerby’s were talking among themselves as they

walked past. Accused 2 gave accused 4 N$150 which he in return gave to him.

Mungongolo testified that on the day of their arrest at Bank Windhoek ATM

machines, accused 2 came driving a Nissan Hardbody Double Cab white in color

N104565W. He stood behind them as they withdrew money. From here they

moved to Standard Bank ATM. Accused 2 did not stay long he drove away and

came back to pick others at a latter stage – as it was their practice.

Emmerentia Farmer testified

That she went with accused 2, 4 and 6 and Izaan Wagner and other for a

game drive at a Lodge near Okahandja.

That they referred to accused 6 as Big guy, and they met him at prison

and told him accused 2 and others have been locked up.

63

That she and Izaan went to prison and told accused 2 that accused 6 was

around. Accused 2 sent the two girls to tell accused 6 that brown bread is

tasty in prison.

Brenda Katupose testified

That she met accused 6 at Funky Club where he came looking for

accused 2, Alex.

That some few days later accused 6 walked past her workplace News

Café Central where accused 2 and Sana were sitting and he just waved at

them.

Xavier Cupido testified

That he was introduced to accused 6 at the time accused 1 and 2 picked

him up at the Airport. He recognized accused 6 by his long tail hair and

muscular build.

That at some stage he met accused 1, 2 and 6 once at Funky Lab, once

or twice at La-Dee-Das. Accused 4 testified during bail application that his

co-accused were his friends.

An instruction was put to Mafwila during the bail hearing that he knew

(accused 4), some foreign nationals including accused 2, 3 and 5.

64

Bruce Bronze Scheepers testified

That accused 2, 4 and 6 knew each other before they were arrested,

thereby corroborating the evidence by Izaan, Emmerentia and Xavier and

others.

That at some stage he was together with accused 2, 4 and 6 at a Club.

Annelie Petrus testified

That in April 2007 she worked at Namibia Bureau De Change at Hosea

Kutako Airport as a forensic consultant. It was during that month while on

duty when she met four foreign men, Sana, Raji, Alex and Gabri, accused

4. They introduced themselves to her as car dealers. Accused 1, later

became her boyfriend. Accused 4 Raji wrote a letter of invitation to enable

accused 1 to come back to the country and she signed it. She also gave

the copy of her Namibian identity document to be attached to the letter.

She regularly visited Napwu Guest House. She had a Bank Windhoek

bank card which she at some stage gave to one of the accused and it

eventually disappeared. It was latter found by the police at the time of the

accuseds’ arrest.

A photograph of accused 6 with Ms Namibia found among other things at

Napwu Guest House, coupled with an invitation letter from accused 4, and

information from other witnesses enabled Chief Insp. Husselman to spot

him at Big Pie resulting in his arrest.

65

The evidence of Mungongolo is that on 06 June 2007 he saw accused 4 (the only

black person standing watch behind accused 2 and others busy withdrawing

money at Bank Windhoek ATM machine in Katutura. Ricardo Ninum

corroborates Mungongolo’s evidence where he testified that he saw the only

black man in the company of Indian looking foreigners who were busy

withdrawing money with a lot of cards at Standard Bank, Otjiwarongo. It was the

foreigners who were busy withdrawing money with a lot of cards at Standard

Bank, Otjiwarongo. It was the black man who robbed him of his service firearm

and later dropped it at the corner of the street as they were driving away. It is my

considered view that the only black man referred to by Ricardo Ninum, although

he did not identify him, is none other than accused 4. The above evidence,

coupled with accused 4’s own admission that he indeed drove around accused 2

and other friends, credibly slots him in as part of the group.

[19.2] The bail application evidence by accused 5 is that he only came in the

country to sort out a restaurant/jewelry business and to deliver two ultra violet

note detectors (verifiers) to accused 1. The latter eventually ended up paying

N$18 000 for accused 5’s three trips to South Africa for no apparent reason. In

addition to the above both accused 4 and 5 admit they met in South Africa at

some stage. Insp. Baisako testified that accused 5 told him accused 1’s name is

Alex. Izaan Wagner testified that at some stage she escorted accused 2 to pick

66

up accused 5 at the Airport. The above evidence credibly and clearly shows that

all the accused belong to one group and therefore knew each other very well and

that they have been operating as a group. The evidence before court clearly

shows that three accused would go to the ATM machine, dropped by accused 2

who would then come back to collect them at a latter stage. It was a well

organized group. Accused 4, a Namibian, was readily available to take them

wherever they wanted for site seeing, clubbing and so forth.

[19.3] According to Mr Swart the data contained in the 41 paged document

marked exhibit 9 is a master file and a requirement to syndicates in the

manufacture of counterfeit cards. He stated that syndicates at times use some of

its people as runners to make deliveries of whatever the syndicate requires.

According to this witness, accused 5 squarely falls in that category for the fact

that he travelled from very far just to deliver a Note Counter and Note Reader. It

is my considered view that the above evidence is in accord with accused 5’s

conduct. It displaces his assertion that he came to Namibia for a business

meeting with accused 1, because he never even bothered to hold such a

meeting.

[19.4] From the evidence it is very clear that this massive dishonest scheme was

facilitated by concerted efforts from all the accused in addition to the following

67

materials and or equipment they had brought into the country, such as:

The clean standard bank size white plastic cards or gift cards, with

magnetic strip.

The color printing device which they used to print bank images, logos,

insignia, were all crucial to make the appearance of the (cloned) created

cards look like genuine bank cards.

The electronic devices such as laptops, card reader and writer, were used

to load bank card numbers onto the magnetic strip.

Label printers, PIN numbers were written on the label and stuck on the

cards.

[20] Were the bits of equipment the police found at the accused’s residence

capable of cloning/creating false/counterfeit cards. Theodore Schoeman testified

that he examined the HP laptop and found that it had a special printing program

necessary for sending information to the EVOLIS machine to print on the cards.

The EVOLIS machine was found loaded with some cards that already had Bank

Windhoek details on one side. This witness examined all the bits of equipment,

and concluded that the accused were indeed able and were in fact creating the

counterfeit bundles of cards they were using to withdraw money at ATM

machines. The above evidence is credibly corroborated by Alfred Cedric Swart

who testified that all the counterfeit bank cards in exhibits ‘16’ and ‘O’ are similar

to images found on the HP laptop, the source of the creation of the cards on this

68

matter.

[20.1] The prosecution witnesses Z. K. Mutenge, Annelie Petrus and Fenny

Amutenya testified that they lost their Bank Windhoek and Auto Bank cards

respectively. However, they were surprised when the police showed them the

images of their banking cards which were found on the accused’s HP laptop. The

evidence clearly shows that the accused were working as a group. Therefore the

creation of images of bank accounts of Mutenge, Amutenya and Petrus on their

HP Laptop shows that they had the intention to use the images unlawfully for

their own good without the consent of the owner.

Bank officials, Mafwila Muundjua, Vickers and Swarts testified it is a standard

bank policy that banks do not issue two cards with the same (BIN) card number.

[21] Was the random withdrawals of money at Standard Bank, Katutura Pick N

Pay legitimate. Were the accused withdrawing from their own bank cards.

[21.1] From the evidence, the above cannot be true that is the reason why the

accused were carrying along bundles of fake or counterfeit bank cards. The

evidence further shows that the accused were not entitled to make withdrawals

using those fake cards. It also follows that they are not entitled to the monies that

were found on them as well as the monies found among their belongings at their

69

residences respectively. The evidence of Simon Mungongolo when he first saw

the accused in the middle of the night clearly shows that they were withdrawing

money at the till in suspicious circumstances. He testified that they would

immediately halt withdrawing once they saw people walking past, accused 4

would at times stand watch behind them as they are busy withdrawing the

money. They would also anxiously find out from accused 4 who understood

Afrikaans and other local languages what those walking past were talking about,

and he would tell them. Surely a person withdrawing money from his or her own

account would not always bother himself with all this. To crown it all, the sealed

carton of clean standard size bank cards, as well as the bundles of fake cards

that were found on the accused by the police at the time of their arrest clearly

shows that the withdrawals were illegal. The evidence shows that they were in

fact withdrawing money using compromised/counterfeit bank cards which they

themselves created. A total amount of N$920 000 cash was found on the first

three arrested accused, N$9 000 was found at the resident of accused 4, U$82

850.00 was found at the Guest House.

[22] I will now look at the evidence of the accused:

[22.1] Pararasasingam Sarangan testified he is accused 2, a Srilankan national,

and on 20 July 2007 he first set foot in Namibia from Singapore. He was arrested

on 7 August 2007. He met accused 1 and went to reside in a room at Napwu

70

Guest House. They went clubbing and site seeing around here in Namibia. He

only met accused 6 and 4 in prison after he was arrested. He made an

application for a Visa at the Namibian Embassy in Malaysia, he got it and that

was how he came to Namibia.

[22.2] On the day of the arrest he and accused 1 met some girls at the Club. It

was about 01h00 during the night, and they were walking back to the Guest

House. Accused 1 said somebody was coming to pick them up. He walked apart

to pass water. When he was done he walked through a corridor to rejoin accused

1 but they were suddenly surrounded by men who later turned out to be police

officers, were arrested and handcuffed. All belongings in his pockets including

400 US dollars that was in his wallet were confiscated. They were taken to

Napwu Guest House where their rooms were searched. Sgt. Shimbuli wrote

down what was found in his room. He did not withdraw money at the ATM on the

day of their arrest. According to accused 2, he was not found with cloned cards

and neither does he have the capacity to do so. He came to Namibia with

enough money, 5 000 US dollars and there was no need to withdraw some more

again. During cross-examination he testified that he does not know accused 4

and 5 and did not conspire with any person to commit an offence.

[23] The following are details of illegal withdrawals from British cardholders’s

71

accounts that were done in this country. The withdrawals below clearly fall within

the period the accused entered and exited Namibia on diverse occasions via

Hosea Kutako Airport between 18 March 2007 to 14 August 2007.

Name of cardholder Places of withdrawal How many times Dates of with-

drawals

S I J Chowdhury Std Bank Pap Property Whk 2 x 1 15/7/2007

4539781144578116 Cash Center Whk 2 x 1 16/7/2007

Cash Center Whk 4 x 1 17/7/2007

Std Bank Independence Whk 2 x 1 21/7/2007

Std Bank Shell Okahandja 6 x 1 22/7/2007

Cash Center Whk 4 x 1 23/7/2007

S C Hayes Std Bank Katutura 2 x 1 13/7/2007

4539781144578116 Cash Center Whk 2 x 1 14/7/2007

Cash Center Whk 2 x 1 19/7/2007

Std Bank Independence Whk 2 x 1 19/7/2007

Otjiwarongo Branch 4 x 1 22/7/2007

Cash Center Whk 2 x 1 23/7/2007

Std Bank Independence Whk 2 x 1 25/7/2007

Cash Center Whk 2 x 1 26/7/2007

Cash Center Whk 2 x 1 27/7/2007

72

Cash Center Whk 2 x 1 29/7/2007

Cash Center Whk 2 x 1 30/7/2007

Std Bank Woerman,

Khomasdal 2 x 1 31/7/2007

Cash Center Whk 2 x 1 3/8/2007

Std Bank Katutura 2 x 1 4/8/2007

Cash Center Whk 3 x 1 5/8/2007

A R Leadbeater Std Bank Katutura 2 x 1 13/7/2007

453978797721126 Cash Center Whk 2 x 1 14/7/2007

Cash Center Whk 2 x 1 15/7/2007

Cash Center Whk 2 x 1 16/7/2007

Cash Center Whk 2 x 1 17/7/2007

Cash Center Whk 2 x 1 20/7/2007

I J Parker Std Bank Katutura 4 x 1 13/7/2007

4539787538026166 Cash Center Whk 2 x 1 14/7/2007

Cash Center Whk 2 x 1 15/7/2007

Cash Center Whk 2 x 1 16/7/2007

Cash Center Whk 2 x 1 17/7/2007

Cash Center Whk 2 x 1 18/7/2007

Cash Center Whk 6 x 1 23/7/2007

73

Std Bank Independence 2 x 1 25/7/2007

Cash Center Whk 2 x 1 27/7/2007

G D Moore Cash Center Whk 1 x 1 25/7/2007

4539781078627129 Cash Center Whk 1 x 1 26/7/2007

Cash Center Whk 1 x 1 27/7/2007

Cash Center Whk 1 x 1 29/7/2007

Cash Center Whk 1 x 1 30/7/2007

Steven Allmond Otjiwarongo Branch 2 x 1 16/7/2007

4539781050070033 Cash Center Whk 2 x 1 17/7/2007

Cash Center 4 x 1 18/7/2007

Cash Center Whk 1 x 1 24/7/2007

B M Bradley Cash Center Whk 2 x 1 1/8/2007

4537797798763028 Cash Center Whk 2 x 1 2/8/2007

Cash Center Whk 2 x 1 3/8/2007

Std Bank Katutura 2 x 1 3/8/2007

Cash Center Whk 4 x 1 6/8/2007

Brenda Smith Cash Center Whk 6 x 1 3/8/2007

4539795358468202 Cash Center Whk 4 x 1 4/8/2007

Cash Center Whk 4 x 1 5/8/2007

74

R J Tromans Std Bank Pap Property Whk 3 x 1 31/7/2007

4539791786914230 Cash Center Whk 2 x 1 1/8/2007

D M Hughes Std Bank Katutura 2 x 1 28/7/2007

4539794847913159 Cash Center Whk 1 x 1 31/7/2007

Cash Center Whk 1 x 1 1/8/2007

Std Bank Katutura 2 x 1 2/8/2007

Std Bank Katutura 5 x 1 3/8/2007

Cash Center 1 x 1 4/8/2007

Keith Wakefield Std Bank Pap Property Whk 2 x 1 31/7/2007

4539791277088619 Cash Center Whk 2 x 1 1/8/2007

Cash Center Whk 2 x 1 2/8/2007

Cash Center Whk 2 x 1 6/8/2007

N T Bradley Cash Center Whk 2 x 1 1/8/2007

4539791093271308 Cash Center Whk 2 x 1 2/8/2007

Cash Center Whk 2 x 1 3/8/2007

Gaynor Latham Cash Center Whk 6 x 6 3/8/2007

4539795194192081 Cash Center Whk 2 x 1 4/8/2007

Std Bank Katutura 7 x 1 5/8/2007

75

Std Bank Katutura 2 x 1 6/8/2007

James Didlock Std Bank Katutura 2 x 1 28/7/2007

4539798750730021 Cash Center 2 x 1 29/7/2007

Cash Center 2 x 1 30/7/2007

Cash Center 2 x 1 31/7/2007

Cash Center 2 x 1 1/8/2007

Janette Collins Cash Center Whk 5 x 1 6/8/2007

4539791683097501

Lyn Melita Cantrill Cash Center Whk 2 x 1 2/8/2007

4539794365211101 Cash Center Whk 2 x 1 3/8/2007

Michael Paul Meadows Cash Center Whk 4 x 1 4/8/2007

4539797400475110 Cash Center Whk 2 x 1 4/8/2007

Std Bank Katutura 2 x 1 4/8/2007

Cash Center Whk 3 x 1 5/8/2007

Michelle Yvette Collins Cash Center Whk 9 x 1 5/8/2007

4539792597024441 Cash Center Whk 2 x 1 6/8/2007

76

Delaine Ann Landers Std Bank Katutura 1 x 1 4/8/2007

4539793338673165 Cash Center Whk 12 x 1 5/8/2007

Malcolm C Mc Mahon Std Bank Katutura 2 x 1 4/8/2007

4539793817991138 Cash Center Whk 4 x 1 6/8/2007

John D Hughes Cash Center Whk 1 x 1 4/8/2007

4539794109811133 Cash Center Whk 6 x 1 5/8/2007

Dominic C Currivan Std Bank Katutura 3 x 1 4/8/2007

4539794250820164 Cash Center Whk 3 x 1 4/8/2007

Cash Center Whk 3 x 1 5/8/2007

Lee E Hayes Cash Center Whk 3 x 1 4/8/2007

4539797987516104 Cash Center Whk 6 x 1 5/8/2007

[22.3] In Rex v Henkes 1941 AD 143 at 161 the Court said the following about

the crime of fraud:

“The law is well established now that to constitute the crime of fraud the Crown

must prove a perversion of the truth by the accused, that such perversion was willful,

that the accused made it with intent to defraud, and that the misrepresentation caused

prejudice or was calculated to cause prejudice.”

Further on the Court gives a complete picture:

77

“Generally speaking, if a misrepresentation which is capable of deceiving is

made willfully and the person making it intends to deceive the person to whom it is

made, that is sufficient to prove the intention to defraud where the misrepresentation is

one which causes actual prejudice or is calculated to prejudice.”

[22.4] It is my considered view that when the accused electronically stole or

caused to be stolen, the particulars of British card holders:

for use in the equipment they have acquired and brought along in the

country;

and proceeded to create bundles of counterfeit bank cards on the said

equipment, and

withdrew money from the stolen account numbers using fake cards, they

knew they were not lawfully entitled to do so, and they were intentionally

defrauding the financial institutions which lawfully issued the original

genuine bank cards; as well as the financial institutions who own the ATM

machines from where the unlawful withdrawals were repeatedly made. I

therefore rule that fraud has been properly established beyond reasonable

doubt.

[22.5] In the result the accused are convicted as follows:

Count 1: Contravening Section 18(2)(a) of the Riotons Assemblies Act 17 of

1956 - Conspiracy to commit fraud, read with Section 84(2) and 92 of

the Criminal Procedure Act 51 of 1977

78

Accused 2: Guilty

Accused 3: Guilty

Accused 4: Guilty

Accused 5: Guilty

Accused 6: Guilty

Count 2: Fraud (amount of money defrauded unknown)

Accused 2: Guilty

Accused 3: Guilty

Accused 4: Not Guilty

Accused 5: Guilty

Accused 6: Guilty

Count alternatively to count 1509:

Contravening Section 8(1) of Ordinance 12 of 1956 – Unlawful use of property

Accused 2: Guilty

Accused 3: Guilty

Accused 4: Not Guilty

Accused 5: Not Guilty

Accused 6: Guilty

Count 1510: Alternatively to count 1510:

79

Contravening Section 8(1) of Ordinance 12 of 1956 – Unlawful use of property

Accused 2: Guilty

Accused 3: Guilty

Accused 4: Not Guilty

Accused 5: Not Guilty

Accused 6: Guilty

Count 1511: Alternatively to count 1511:

Contravening Section 8(1) of Ordinance 12 of 1956 – Unlawful use of property

Accused 2: Guilty

Accused 3: Guilty

Accused 4: Not Guilty

Accused 5: Not Guilty

Accused 6: Guilty

Count 1513: Contravening Section 14(1)(a) Read with Section 91 of the Customs

and Excise Act 20 of 1998 – Non-declaration of Goods

Accused 2: Guilty

Accused 3: Guilty

Accused 4: Not Guilty

Accused 5: Not Guilty

Accused 6: Not Guilty

80

Count 1515: Contravening Section 14(1)(a) Read with Section 91 of the Customs

and Excise Act 20 of 1998 – Non-declaration of Goods

Accused 2: Guilty

Accused 3: Guilty

Accused 4: Not Guilty

Accused 5: Guilty

Accused 6: Not Guilty

Count 1516: Forgery of a drivers licence

Accused 2: Guilty

Accused 3: Guilty

Accused 4: Guilty

Accused 5: Guilty

Accused 6: Not Guilty

__________________

A M SIBOLEKA

JUDGE

81

APPEARANCES

COUNSEL ON BEHALF OF THE STATE: E. E. MARONDEDZE

assisted by E MOYO

INSTRUCTED BY: THE OFFICE OF THE PROSECUTOR-GENERAL

COUNSEL ON BEHALF OF ACCUSED 2, 3 AND 6: S NAMANDJE

INSTRUCTED BY: NAMANDJE & CO. INC.

COUNSEL ON BEHALF OF ACCUSED 4 AND 5: MR UIRAB

INSTRUCTED BY: DIRECTORATE OF LEGAL AID