Lawyer Madise in defence of Matemba and ACB: Republic Vs Senzani

Starting with the live
coverage of the Dr Conrad
Murray [Michael Jackson
murder] trial to the Oscar
Pistorius trial, we have
witnessed a ‘mediasation’
of the law. By the end of
the ‘OP’ trial, almost anyone
who cared could venture in
a legal opinion of how the
state and the defence had
performed and how Judge
Thokozile Masipa had or
had not got the verdict
right.
It was therefore expected
that the sentence imposed
by the High Court in
Republic v Senzani would
result in a furore and a
backlash against the Anti-
Corruption Bureau (ACB). Its
Deputy Director, Reyneck
Matemba had to give some
justification to a largely
dissatisfied media. This
article makes an attempt to
show that maybe the
criticism against the ACB
and Matemba may be
unwarranted. It argues that
there is blame, yes, but
maybe it lies elsewhere.
Treza Senzani was charged
with theft of public funds
under the Cashgate affair.
She pleaded guilty to
stealing K63 million
($150,000) as well as
money laundering. She was
sentenced to9 months
imprisonment on the
charge of theft and 3 years
for money laundering.
These sentences are to run
concurrently. The maximum
she can serve is 3 years.
The public outcry came
after people thought that
Senzani’s sentence was too
lenient and blamed the
State for charging her with
common theft.It is said
even the presiding Judge
wondered the more
serious offence of ‘theft by
public servant’ was not
proffered. Matemba’s
argument that this was
‘because she still could have
dipped her fingers in the
public kitty even if she was
not a public servant’ was
described as ‘balderdash’.
It is clear that the public
wanted Senzani to be
charged with theft by
public servant, which
ensures a long jail sentence
upon conviction. Now
herein lies the problem.
Theft, also called, simple
theftand theft by public
servant are two different
species of theft. When a
public servant steals from
the public; that does not
automatically translate to
theft by public servant.
ANALYSIS OF THE LAW
Theft
The maximum general
punishment for theft is 5
years. But even the 5 years
is usually reserved for the
worst offenders. In law the
usual saying is that the
worst offender is not yet
born. The reasoning is
simple, suppose you
sentence a person who has
stolen X amount to the
maximum 5 years; what
happens when the next
person steal X +1 or even
2X, 10X, 100X or indeed
more?
By comparison, a person
found guilty of robbery can
spend up to 14 years.If one
steals a bicycle (njinga ya
kabaza) then the sentence
is 10 years! These are the
maximum. This comparison
is deliberate so that public
can begin to identify where
the problem lies.
Theft by public servant
Simply put, the law is that if
public employee has by
virtue of that employment
received or has had in her
custody or under her
control any money and
such person has been
unable to produce to her
employer such money or to
make due account therefor,
then unlessshe satisfied the
court to the contrary, she
shall be presumed to have
stolen the money.The
punishments for this are on
a graduated scale, but
anything exceeding
K80,000.00 leads to a
maximum of 14 years
imprisonment. If we look at
the elements of this
offence, it means that the
State must prove several
things. The tricky part
though is proving that the
accused was in custody of
the money stolen, or it
came into her possession
by virtue of employment. If
we look at the Cashgate
cases, we see that it is not
only public servants that
are being accused and
tried. This means that the
people alleged to have
stolen the money did not
do so by virtue of being
public servants. It is on this
basis that the charge of
simple theft would be a
preferred one.
The decision to prosecute
is never an easy one. The
State must consider not
only the charges but the
likelihood of getting a
conviction on a standard of
proof beyond reasonable
doubt. In this case, theft
was proffered because, in
my opinion, it was deemed
a safe charge which was
more likely to result in a
conviction.
Money Laundering
Senzani was also charged
with money laundering.
The maximum sentence for
money laundering is 10
years or a fine of K2 million.
For whatever reason, there
seems to be less outcry
regarding this charge. Yet
compared to theft, money
laundering is a more
serious offence.The fact
that the Court imposed a
custodial sentence reflects
the Court’s view about this
particular case.
CONCLUSION
Is the Public justified in
being angry? I would say it
is. However I argue that the
anger should not be
directed to the ACB or Mr
Matemba or even the Courts
but it is the law that is to
blame. If theft of a bicycle
can be treated as a more
serious offence than theft
of millions then we clearly
have a problem.So what
needs to be done? In my
view, the public, if it feels
aggrieved by this, should
move for a change of the
law. This can be done via
our Members of Parliament,
Civil Society Organisations
and other lawful means. A
message needs to be sent
that the lawmakers that the
penal law in our country is
out of step with societal
expectations. Reforming
the law is not something
that can be done overnight.
But without agitation or
triggering effect, no
reformation may take place.
For now, as the ACB states
that we should expect
more arrests, the public
needs to brace itself that in
relation to the Cashgate
affair, most likely the people
arrested may be charged
with theft and/or money
laundering.

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