Court name
High Court
Case number
CA 49 of 2003

S v Theofelus (CA 49 of 2003) [2005] NAHC 11 (14 June 2005);

Media neutral citation
[2005] NAHC 11


NO. CA 49/2003


, J. et Maritz, J.



procedure – failure to allow accused to call witness - not per
constituting an irregularity vitiating conviction –
testimony of witness not on issue material to outcome of case –
even if the witness’ testimony would have been accepted,
conviction would still have followed – irregularity not tainting
the conviction

law – theft – intention to permanently deprive the owner of
the full benefits of his ownership – appellant purportedly
taking goods as “pledge” for debt he knew owner denied and
would not pay – retention would have been indefinite –
sufficient degree of permanency attaching to unlawful taking to
justify conviction

CASE NO. CA49/2003


the matter between:






on: 2003.07.24

on: 2005.06.14



The appellant was arraigned in the Magistrate's Court,
Swakopmund, on a charge of housebreaking with the intent to steal and

Prosecution alleged that the appellant had unlawfully and
intentionally broken into and entered the garage of the complainant
with the intent to steal and that he had stolen property of the
complainant to the value of N$3 986,00. The appellant, maintaining
that he had taken the property as a “pledge” for a debt in the
amount of N$750-00 owing to him by the complainant for services
rendered, entered a plea of “not guilty”. At the conclusion of
the trial, the Magistrate convicted the appellant and sentenced him
to 18 months imprisonment without the option of a fine. Protesting
his conviction and the severity of the sentence imposed in a letter
received by the Clerk of the Court more than 8 months after he had
been sentenced, the appellant appealed to this Court to set them
aside. When the appeal came before us four months later, the
appellant had already been released from prison. By then, it seems,
he had lost interest in the appeal. He did not appear at the hearing
thereof but Ms Briers, who was requested by the Court to argue the
appeal amicus curiae, took up the cudgels on his behalf. She
argued the appellant’s case with vigour
and it was apparent to us that she had set aside a considerable
amount of her time to research case law on issues relevant to the
appeal and to prepare heads of argument. The Court is grateful for
her efforts.

I deal with the arguments presented by her, it is perhaps apposite to
first summarise the evidence on which the Magistrate convicted the
appellant. Katrina Gamses, a domestic worker in the employ of the
complainant, recalled that the East-wind had been blowing very strong
in Swakopmund on the day in question. As she was walking towards an
outbuilding on the premises to close a window, her attention was
drawn to a noise in the vicinity of the complainant’s garage. Upon
investigation she noticed a man, whom she later identified as the
appellant, leaving the premises with a bag. He crossed the street
and sat down in an open area where he inspected the contents of the
bag. She immediately phoned the complainant to report what she had

waiting for her employer to arrive, she saw the appellant returning
and removing three five-litre tins of paint from the garage. She
followed him up to the main gate of the premises and enquired from
him where he was working. He told her that he was working in town
and was waiting for a taxi to take him to work. In the course of
that conversation he crossed the street where he put down the paint.
At that stage the complainant arrived by car and called the
appellant. The appellant did not respond and when the complainant
drove closer to him the appellant ran away in the direction of a
nearby supermarket. The complainant gave chase and eventually
apprehended the appellant. The goods were recovered by an
acquaintance of the complainant who happened to drive by where the
goods had been abandoned. She returned them to the complainant.

appellant’s version of the events differs substantially with those
of the prosecution witnesses. According to his testimony, he had
rendered services to the complainant as a painter for which the
complainant had agreed to pay him N$1 100-00. He was only paid
N$350-00 and promised payment of the balance at a later stage. He
thereafter called regularly on the complainant for payment, but to no
avail. He complained to the police who referred him to the Workers’
Union but, when they too turned down his complaint, he decided to go
to the complainant’s home, demand payment and, should the
complainant refuse to pay him, take some of the complainant’s goods
a “pledge” and retain them until he would be paid.

his arrival at the house, he knocked and enquired from Ms Gamses
about the complainant’s whereabouts. She told him that the
complainant was working in the area and shortly afterwards the
complainant arrived. The complainant demanded of him to leave the
premises but the appellant refused, saying that he would not leave
without the money due to him. The complainant denied that he owed
the appellant any money and when the complainant’s friend arrived,
he also denied that the appellant had ever worked for him. The
complainant then followed him around with his car and, when the
appellant stopped on one occasion, the appellant took out a saw and a
plane. The complainant and his friend wrestled with him to recover
the tools. When they succeeded, the appellant took three tins of
paint, saying to them that he would keep the paint until he would be
compensated for the services he had rendered. When the complainant
realised that he could not overpower the appellant, he phoned the
police. Upon their arrival, he was firstly manhandled and then
arrested by the police.

Magistrate rejected the appellant’s evidence as false. She
accepted the evidence of the State witnesses as reliable and
trustworthy and concluded that, even if the appellant had previously
been employed by the complainant, he had no right to take the law
into his hands by entering onto the complainant’s premises and
removing the goods.

making this assessment of the evidence, the Magistrate obviously
enjoyed advantages which this Court, sitting as one of appeal, does
not. The witnesses appeared before her in person and she could make
those findings with regard to their appearances, demeanor and
personalities. This Court, on the other hand, has only the
type-written record of appeal to judge the issues. Intonations in a
witness’ voice, hesitation to respond to a question, stuttering,
discomfort, irritation and the like get lost in the transcription.
The trial Magistrate is “steeped” in the atmosphere of the trial
and must therefore be allowed some margin of appreciation in
assessing the reliability and credibility of a witness’ evidence
(see generally: R v Dhlumayo & Another, 1948(2) SA 677(A)
at 705-6). In the absence of a “demonstrable and material
misdirection by the Trial Court” its findings of fact are presumed
to be correct (S v Hadebe & Others, 1997(2) SACR 64 (SCA)
at 645e-f), and the Court of Appeal would not be inclined to reject
them - S v Robinson & Others, 1968(1) SA 666(A) at

for the appellant did not suggest any misdirection in the extempore
judgement of the Magistrate and
I was unable to find any. It is also my considered conclusion that
the factual findings made by the Magistrate are supported by the
evidence on record.

prosecution’s case is based primarily on the evidence of Ms Gamses.
She was an eyewitness to the event with no apparent direct interest
in the outcome of the case. She was, I remind myself, an employee of
the complainant with seven years standing and her evidence must be
considered with that relationship in mind. Her evidence was lucid,
following a logical sequence of events and is corroborated not only
by her conduct (for example, by immediately phoning her employer when
she noticed the appellant’s suspicious conduct) but also by the
evidence of the complainant and the place where the stolen goods were
eventually recovered by a third party. Her evidence has a clear ring
of truth to it and I did not find any improbabilities which may cast
a shadow on the reliability thereof. She emphatically rejected the
appellant’s assertion that he had knocked at the door and had asked
her about the whereabouts of the complainant. She also rejected his
suggestion that the tins of paint had still been on the premises
shortly before the arrival of the complainant. She told the court
under cross-examination that after the appellant had told her that he
would be going to work with the paint and was waiting for a taxi, she
queried him about doing paint work with the wind blowing as strong as
it did. This is but an example of the originality and spontaneity
which permeate her evidence. The manner in which she gave her
evidence militates against the inference that is a concoction
generated to discredit the appellant.

The evidence of the appellant, on the other hand,
contains a number of improbabilities and inexplicable leaps in logic.
The appellant testified that he had refused to leave the
complainant’s premises until he was paid. Immediately thereafter
he testified how the complainant had been “following me ... around
with his car”. That must have happened outside the premises
because the appellant later testified that during the wrestling match
for the saw and the plane, they had moved back into the yard. The
one moment he testified that the complainant and his friend had
overpowered him when they had taken away the saw and plane. Yet,
they did not even attempt to take the three five-litre tins of paint
from him and, he testified, only phoned the police when the
complainant had realised that he could not “overpower me”. It
seems to me entirely improbable that two men, who were strong enough
to take away the plane and the saw from the appellant would not be
able to take away at least one of the three five-litre tins of paint
from the appellant. Given the size thereof, three five-litre tins of
paint would have been difficult enough to handle all at the same
time, let alone to be clutched so strongly that two other men would
not be able to remove at least one of them!

It is also of some significance that the appellant
was conveniently vague about the services he had allegedly rendered
to the complainant. He did not put to the complainant where in
Swakopmund he had actually worked; when he had done the work; for
which period and precisely what the nature of the work had been. As
it were, he did not even put it during cross-examination to the
complainant that he had rendered services for the complainant. The
closest he came to such a suggestion was, when he put to the
complainant that he had refused to leave the complainant’s premises
unless he would be paid - without mentioning why the complainant had
allegedly been indebted to him.

appearing on behalf of the appellant must have realised the
difficulty which the appellant would face in attacking the Trial
Magistrate's findings of fact on appeal. Hence, the centrepiece of
her attack is the allegation that the appellant was deprived of his
constitutional right to call a witness to testify in his defence at
the trial. That attack is based on an indication given by the
appellant at the commencement of the case for the defence that he
wished to call a witness who was aware that he had been employed by
the complainant. The witness was, however, not available in
Swakopmund at the time. After the conclusion of the appellant’s
evidence the following was recorded:

Court: Any
witnesses or can we finalise your case? --- Yes, your Worship.

you very much. Defence case closed.”

argues, so I understand her submission, that the appellant was asked
a double-barrelled question and that it is not clear to which one of
the two questions he answered in the affirmative. Having indicated
earlier that he intended to call a witness, it must be assumed that
he answered in the affirmative to the question whether he had “any
witness”. By closing his case, the Magistrate denied him the right
to call that witness, thereby committing an irregularity which
prejudicially affected the appellant (see: R v Sibia, 1947(2)
SA 50 (A) and S v Hlongwane, 1982(4) SA 321 (N)).

Briers, however, concedes that such a refusal does not per se
violate an accused’s right to a fair hearing (see: S v Behan,
1990(3) SA 18 (ZS) at 24C) unless it is shown the evidence would have
been both material and favourable to the appellant’s defence and
that the irregularity so prejudiced the appellant that the verdict
has been tainted - S v Shikunga & Another, 2000(1) SA 616
(NmS) at 629F-J. She submits that the witness could have confirmed
that the appellant had been employed by the complainant and, if
accepted as credible, it would not only have constituted
corroboration for the appellant’s defence but also impacted on the
credibility and reliability of the evidence of the prosecution

intended meaning of the appellant’s response to the Magistrate's
double-barrelled question was already queried by my brother Hoff, J
when the case was forwarded to him on automatic review prior to the
noting of the appeal. Quoting the same passage, he remarked as

questions were asked in one sentence. To which question did
accused reply ‘yes’ ?

this not have been clarified by the Presiding Officer without
assuming that he said ‘Yes’ in respect of the second question?

the accused not prejudiced in his right to a fair trial?”

The Magistrate responded as follows to
this enquiry:

asking the accused ‘Any witnesses ?’, I paused and the Accused
person shook his head indicated (sic) no. It seemed as if he
changed his mind that is why I proceeded to ask ‘or can we finalise
the case?’ He then indicated ‘yes’.”

It often happens that Magistrates omit
to record gestures made by witnesses and accused persons alike. This
case presents one of those examples. Magistrates are again urged to
record all gestures made or demonstrations and indications given in
Court insofar as they may bear either on the evidence of the
particular witness or on the proceedings in Court. Having said that,
there is no reason why the Magistrate's explanation should not be
accepted as part of the record on appeal. I did not understand
counsel for the appellant to take issue with the fact that the
magistrate had simply omitted to record that the appellant had shaken
his head in response to the first part of the question. This, by
itself, will dispose of the alleged irregularity on which the
appellant relies.

But even if the Magistrate's explanation
is to be disregarded, it does not follow that the verdict is vitiated
by the irregularity. This much is apparent from the judgment of
Mahomed, CJ in S v Shikunga & Another supra at
629F-J where the Learned Chief Justice summarised the position as

would appear to me that the test proposed by our common law is
adequate in relation to both constitutional and non-constitutional
errors. Where the irregularity is so fundamental that it can be said
that in effect there was no trial at all, the conviction should be
set aside. Where one is dealing with an irregularity of a less
severe nature then, depending on the impact of the irregularity on
the verdict, the conviction should either stand or be substituted
with an acquittal on the merits. Essentially the question that one
is asking in respect of constitutional and non-constitutional
irregularities is whether the verdict has been tainted by such
irregularity. Where this question is answered in the negative, the
verdict should stand. What one is doing is attempting to balance two
equally compelling claims – the claim that society has that a
guilty person should be convicted and the claim that the integrity of
the judicial process should be upheld. Where the irregularity is of
a fundamental nature and where the irregularity, though less
fundamental, taints the conviction the latter interest prevails.
Where, however, the irregularity is such that it is not of a
fundamental nature and does not taint the verdict the former interest
prevails. This does not detract from the caution which a Court of
Appeal would ordinarily adopt in accepting the submission that a
clearly established constitutional irregularity did not prejudice the
Accused in any way or taint the conviction which followed thereupon.”

The appellant initially indicated that
he wished to call the witness merely to confirm that he had been
employed by the complainant at some stage. Even if the Court would
have accepted the evidence of that witness, it would only have
impacted on the credibility of the complainant’s evidence. It would
not have had any effect whatsoever on the evidence of Ms Gamses, the
domestic worker – and it is her evidence which, in my view, was
pivotal to the appellant’s conviction.

Furthermore, the acceptance of such
evidence would at best have corroborated the appellant’s motive for
taking the goods in question. The motive of an accused person when
he or she deprives the owner of possession is generally irrelevant to
the question whether the accused had the requisite intention to
appropriate the res – unless, of course, the motive is in
itself an indication that the accused did not have the intention to
permanently deprive the owner of the full benefit of his rights in
and in relation to the goods. In the latter instance, accused
persons have escaped conviction on charges of theft where they have
taken the goods imvito domino but not with the intention to
deprive the owner permanently of the full benefits of his ownership
(see: Milton, South African Criminal Law & Procedure,
Vol. 2 (3rd Ed.), p 620). Even if I accept the appellant
evidence that he wanted to take the goods in order to enforce
payment, it should have been apparent to him that the complainant
denied liability and would physically resist the taking of the goods.
This situation is not entirely dissimilar to the one which arose in
the case of R v Mtshali, 1960(4) SA 252 (N) where the
appellant took the complainant’s wireless and gramophone with the
intention to hold it until the complainant had paid him the money
which the appellant suspected she had stolen from him. The
complainant denied that she had stolen the money.

After an analysis of the degree of
permanency required before a Court may conclude on the facts of a
particular case that an accused intended to permanently deprive the
owner of the full benefits of his rights, Holmes, J said in R v
, supra, at 254H-255B:

of an owner’s enjoyment of rights connotes a reasonable measure of
permanency. An intention to suspend temporarily such enjoyment ...
excludes a conviction for theft. Each case must turn on its own
facts. The question of permanency may often be one of degree, in
relation to such matter as the durability of the thing taken and the
contemplated period of retention ...

the present case the appellant’s intention was apparently to hold
the wireless and gramophone until the complainant paid him the money
which he suspected she had stolen from him. How permanent did he
intend that situation to be? It seems to me to be relevant to
enquire whether he had reasonable grounds for suspecting that the
complainant had stolen his money, for if he had no such grounds, he
could not have expected that she would pay the money, and his
intended retention of the goods become indefinite. That, in the
absence of factors pointing the other way, would give rise to an
inference of an intention to terminate the complainant’s enjoyment
of her rights; and a conviction of theft would be in order.”

Similarly, the appellant knew that the
complainant denied that he owed the appellant any money. Hence, he
must have foreseen that the complainant would not then or in future
pay him the debt in respect of which he intended to take the
property. That knowledge notwithstanding, he took the items in
question and it is therefore to be inferred that he had the intention
to permanently deprive the complainant of the full benefit of his

For these reasons I
propose to dismiss the appellant’s appeal against his conviction.
Turning now to the custodial sentence imposed. I am mindful of the
appellant’s personal circumstances and the fact that he was a first
offender. Housebreaking with the intent to steal and theft is,
however, not only a very prevalent offence but also a serious one.
In this context, it is perhaps apposite to quote what Strydom, JP (as
he then was) said in the case of Thomas Goma Jacobs v The State,
(unreported judgment of this Court handed down on 22 April 1996):

levels of society have fallen victim to thieves and housebreakers
alike. Whether we want to believe it or not, we are involved in a
war against crime which at present shows no sign of abating. The
situation calls for exceptional measurements and in this process the
Courts play an important role. In this regard the imposing of a
prison sentence for housebreaking and theft, even in the case of a
first offender, has become more or less the general rule. Because of
the prevalence of the crime the shoe is now on the other foot and it
is only in exceptional circumstances where a non-custodial sentence
is imposed by the Court.”

I agree. I have recently remarked (in
the unreported case of Basil Drotsky v The State, case no.
CA195/2004 delivered on 12 May 2005) that –

crime of housebreaking with intent to steal and theft is ... regarded
by the law and society as a particularly insidious form of theft. It
is said that a man’s home is his castle. If there is one place
where a person should feel safe and secure it is in his home.
Housebreaking with intent to steal and theft strike at and destroy
the sense of safety and security which the occupants are entitled to
enjoy. It constitutes an unlawful invasion of the complainant’s
privacy and an illegal misappropriation of his or her possessions –
sometimes commercially irreplaceable goods of great sentimental

these reasons, society has a particular interest that the commission
of this crime should be discouraged by an appropriate judicial
response. Perpetrators should know that the norm is imprisonment
without the option of a fine unless the circumstances of a particular
case justify the imposition of a lesser sentence.

I do not find special circumstances
present in this case. Neither do I find any grounds to justify
interference with the sentencing discretion as contemplated in State
v Tjiho
, 1991 NR 361 at 366A.

In the premises the appeal must fail and
the following order is made:

The appeal is



I concur