CASE NO.: CA 88/2003

SUMMARY

THE
STATE

versus

ROGER
MBERIRA

GIBSON, J et VAN NIEKERK, J

12 AUGUST 2005

Appellant
and co-accused charged with theft of motor vehicle under Motor
Vehicle Theft Act, 1999 (Act 12 of 1999) - charge sheet alleged that
owner of vehicle unknown - co-accused testified that he came to be in
possession of vehicle after swopping vehicles with appellant -
appellant put a different engine into vehicle - police found false
chassis plate fixed to vehicle, broken ignition lock and broken
driver's door handle - these found to be hallmarks of stolen vehicle
- could not trace owner of vehicle because vehicle changed beyond
recognition - State could not prove who owner of vehicle was - must
only show that vehicle not res nullius or res derelictae
- vehicle in question not such - shown to have been stolen -
appellant brought vehicle to co-accused - even if he did not steal
vehicle, appellant well aware that vehicle stolen - theft a
continuous crime - appellant guilty of theft.

CASE
NO. CA 88/2003

IN THE HIGH
COURT OF NAMIBIA

In the matter
between:

ROGER MBERIRA
APPELLANT

vs

THE
STATE RESPONDENT

CORAM: GIBSON,
J et VAN NIEKERK, J

Heard
on: 2004-04-07

Delivered
on: 2005.

APPEAL
JUDGMENT

GIBSON,
J et VAN NIEKERK, J: We shall refer to the main
characters here as appellant and accused 2. The appellant was
charged with accused 2, but only the appellant was convicted of the
offence of theft read with the provisions of the Theft of Motor
Vehicle Act, No 12 of 1999. He was sentenced to 5 years
imprisonment. Appellant was legally represented and offered no plea
explanation at the trial.

The
appellant and his co-accused were charged that they had stolen a
metallic blue Volkswagen Golf on or about 28 December 2000 at
Windhoek. It was further alleged that the registration number and
owner of the Golf were unknown.

The
State presented the evidence of one witness, Sgt Morgan, who was the
investigation officer. He was initially led to the house of accused
no. 2 as a result of a request by the police at Okakarara. At
accused 2's residence he found and confiscated the blue Golf on 28
December 2000. It had all the hallmarks of a stolen vehicle. On
inspection he found that the chassis plate had been refitted (it was
common sense that the Golf had a chassis plate belonging to another
vehicle a Volkswagen Jetta). The right front door lock and handle
had been broken out, the ignition lock had been broken and was taped
together with insulation tape. He was unable to trace a registration
number for the vehicle or its owner. There were indications that the
engine had been replaced.

Accused
2 explained to Sgt Morgan that he had obtained the Golf from the
appellant after a car swop. Indeed, this was also the plea
explanation of accused two and his version throughout. Accused 2 also
handed over certain documents in respect of the blue Golf to Sgt
Morgan: (i) special permit from the period 14 – 16 December 2000;
(ii) an application for registration and licensing of motor vehicle
dated 13 December 2000; and (iii) an application for a roadworthy
certificate dated 13 December 2000. Although these documents were
made out in the name of accused 2, they were signed by someone else.
The chassis number appearing on the Jetta's chassis plate fitted in
the blue Golf appeared on all the forms, but the engine number on the
forms did not correspond with the engine number in the Golf.

This
was the case for the State.

Appellant
testified in his own defence. I shall deal with his evidence later.

Accused
2 also testified and told the court the following: He owned a
Volkswagen Caddy which had become unsightly to his mind. He talked
about his plan to improve it to friends. One day a man he knew from
childhood introduced the appellant, the owner of a Volkswagen Golf
who said he was interested. Accused 2 explained that he would like
to swop the body of his caddy but retain his engine. The appellant
suggested that this would be rather complex, why not swop the
vehicles as a whole? Accused 2, who was knowledgeable about car
engines, noticed that the Volkswagen Golf had an 18 cc engine. He
decided to test drive the vehicle. He liked the performance and
agreed to an exchange but postponed the deal. One day the appellant
turned up with the Golf and wanted the exchange to take place that
day. Accused 2 declined and said he was due to leave the following
day for a tour (accused 2 was a freelance tour guide). However he
said the arrangement could be done the following day in his absence.
He said he would leave the keys behind. He introduced his sisters
Phyliss and Edith Karipozira who resided with him to the appellant
and explained the deal. He explained that the appellant would call
the following day to leave the Volkswagen Golf and take the white
Caddy. After appellant left accused 2 told his sisters that the
appellant was to remove the four tyres on the Caddy and put them on
the Golf as they were newly bought.

The
following day the appellant did call, he collected the keys for the
white Caddy. Edith noticed that the appellant was busy about the
Golf and the Caddy in the process of removing a variety of things.
She did not take much notice and expected the appellant to call her
before departure. Sometime later she noticed that the white Caddy
had gone and the Volkswagen Golf was in its place. Instead of leaving
the keys with her, the appellant had left them with the neighbour.

On
his return accused 2 noticed that the appellant had taken away his
tyres and that the door handle of the blue Golf was broken off. He
checked the engine and noticed that it was not the one he had seen in
the vehicle before. He started the vehicle and noticed from the
sound that it was a smaller engine than the 18cc. He did not know
where the appellant lived because the latter always called on him.
He eventually got the address from the mutual friend who had
introduced them. He tracked the appellant down and asked for the car
papers, the original engine and his tyres. Appellant said he would
bring these items later. It went quiet again. Eventually appellant
returned the tyres.

Meantime
accused 2 had to move to a new home, it had no fence. So he left the
blue Volkswagen Golf at a neighbour’s house for security reasons.
Some time later appellant got in touch and said he wanted to register
the two vehicles involved in the exchange and needed evidence to
confirm the deal as well as N$450.00 to pay for the registration of
the Golf in accused 2's name. Accused 2 told the appellant where to
call on him where he was making plans for his next tour. Appellant
turned up and asked that they draw up two agreements of sale, one for
the Caddy and one for the Golf. He said this was necessary to show
some value on the transaction for tax purposes. They requested some
stationery from a Mr Karonga in whose office accused 2 was. Mr
Karonga did not become involved in what was going on, nor did he pay
attention to the two men. In Court Mr Karonga confirmed the visit of
appellant on accused 2 that day and his supply of stationery. After
appellant obtained the documents he wanted he left and was not heard
of for some time thereafter.

Eventually
accused 2 traced the appellant to the offices of the vehicle
registration authorities and obtained from him the three already
completed documents he later handed over to Sgt Morgan. He also took
back his N$450 and told appellant that he did not want to go through
with the deal any longer because there were too many problems.
Thereafter he looked for appellant for two weeks to get back the
Caddy, but only found the appellant without the car. Accused 2 made
arrangements with appellant to re-swop the Caddy and the Golf. Then
appellant disappeared again. One day accused 2 got a call from his
brother in Okakarara. Accused 2 left immediately. Together with his
brother, and the appellant they went to the Police Station where the
Volkswagen Caddy had been kept the night before together with the
keys. When the discussion about the exchange took place, Accused 2
was surprised to hear the appellant denying any knowledge of the car
exchange and knowledge of the association with the Volkswagen Golf.
Accused 2 told the police about the whereabouts of the Volkswagen
Golf. According to accused 2 the police became suspicious and
decided to check the Golf because the appellant distanced himself
from it. Accused 2 made arrangements to make the keys in Windhoek
available to the police. It was then that it was examined by Sgt
Morgan, who concluded that it was stolen for the reasons already
mentioned.

Appellant's
story under oath, in short, was that he bought the Caddy from accused
2 for N$3000, that he paid the full purchase price and that he
struggled to get the car's papers from accused 2. He spent a further
N$10 000-00 on repairs. He never registered the Caddy in his name.
He denied all knowledge of the blue Golf or any car swapping deal.

The
learned trial magistrate accepted the deductions made by Sgt Morgan
that the Golf was indeed stolen as soundly based and good in logic.
The Court also found ample corroborative evidence of appellant’s
possession of the Golf from the evidence of accused 2, his sister,
Edith, and Mr Xoagub (Kleintjie) and convicted the appellant of theft
of the blue Volkswagen Golf. The denial that he had had anything to
do with the blue Golf was a material fact from which the Court drew
the conclusion of the guilty mind of the appellant.

The
appellant noted an appeal against both conviction and sentence. The
grounds of appeal against conviction, noted here are not exhaustive
in this judgment. Among these are -

1. That
the learned magistrate erred in finding that the respondent had
discharged the onus to prove all the elements of the offence.

2. That
the learned magistrate failed to approach the evidence of accused 2
with caution, as required by law.

3. That
the learned magistrate erred in law and fact in that the appellant
was not found in possession of the alleged stolen vehicle.

4. The
learned magistrate erred in law and/or fact in failing to approach
the evidence of Miss Edith Kariposira with sufficient caution in
that she was a sister of accused 2 and erred in accepting her
evidence whereas it was contradictory and inconsistent with that of
the appellant and accused 2.

The
appellant’s submissions both written and oral in Court are lengthy
and show commendable industry. This judgment would be long and
cumbersome were I to list all the points taken up in support of the
issues raised. The point I wish to make is that no slight is
intended against counsel, who went out of his way to render such full
service to his client.

The
appellant opens with an attack on the court’s acceptance that the
State had proved its case to a sufficient degree as required in a
criminal trial, in particular that the state did not lead sufficient
evidence to prove that the motor vehicle was stolen and that the
appellant was the culprit. The State’s response is that whereas it
did not call all the witnesses referred to in evidence, no negative
inference may be drawn against the State and in any event sufficient
proof, i.e. beyond reasonable doubt was put before the court
entitling the trial magistrate to convict the appellant. Counsel’s
submission invites the Court to range over principles that have been
stated so many times in our and other Courts, but I do believe it is
necessary to go over them in view of the circumstances of this case.
At page 524 of the 4^th edition of The South African Law
of Evidence by Hoffman and Zeffertt, under the subheading “The
quantum of proof”, the learned authors make the following
observations:

”The rules of the quantum
of proof deal with the degree of conviction which the court must feel
before it can make a finding for the party who bears the onus. There
are few things about which anyone can say that he feels absolutely
certain, but short of this point there is a wide spectrum of possible
degrees of conviction. One must say that, on the evidence, the
happening of an event was remotely possible, reasonably possible,
more probable than not, very probable, almost certain. In fact the
law employs two different standards of proof. One is called the
criminal standard, and applies to all issues in a criminal trial upon
which the burden lies upon the prosecution. It is traditionally
expressed as requiring proof beyond reasonable doubt".
(my underlining).

In
this case looking at the state and condition of the blue Golf when it
was exchanged, putting that together with the appellant’s action in
regard to the car on the occasions of his visits with the car,
together with his assertions over the car, as well as the inadequate
and late denial, it is very probable that the Golf was stolen and the
appellant was well aware of the fact.

The
words I have underlined in the quotation above may easily lead to a
misunderstanding about their meaning. However, a useful and clear
exposition of the accepted standard in criminal proceedings, is to be
found in a case that is the locus classicus, ie Miller v
Minister of Prisons [1947] 2 A11 ER 372, at 373. In this case
Lord Denning, in his inimitable style had this to say,

“………..It need not
reach certainty, but it must carry a high degree of probability.
Proof beyond a reasonable doubt does not mean proof beyond a shadow
of doubt. The law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice. If the
evidence is so strong against a man as to leave only a remote
possibility in his favour, which can be dismissed with the sentence
of course its possible but not in the least probable, the case is
proved beyond reasonable doubt, but nothing short of that will
suffice”.

(See other authorities, S
v Kubeka 1982 1 SA 534 W, S v Munyai 1986 4 SA 712 (V); R
v M 1946 AD 1023, 1027; R v Difford 1937 AD 370, 373.)

It
will be clear from the various authorities above that deciding
whether or not there is proof beyond reasonable doubt, as State
counsel pointed out, is best left to the trial court in whose area
lie obvious advantages over the appellate court, such as seeing and
hearing the witnesses, observing their demeanour, sensing the nuances
of the trial and the impressions left by the atmosphere in the trial:
See S v Kelly 1980 3 SA 301 A at 308E. Unless the court has
misdirected itself on fact or law, or committed some other
irregularity that had resulted in a fundamental denial of justice the
appellate Court must defer to the court of trial.

In
any event, in a criminal trial by the State the decision what
evidence has to be led or what witnesses to call is one exclusively
for the State. However there is an exception to this principle in
that by virtue of S 186 of the Criminal Procedure Act, 51/77 it has
been held that the Court has a duty to subpoena a witness if it feels
it is necessary to do so in an attempt to discover the truth so that
justice is done to both sides: See S v Van Der Berg 1995 NR
23. Therefore in its decision not to call Mr Haikera or other
policemen or the brother of the second accused, the State was acting
well within the spirit of the law. There was nothing however to stop
the Court if it felt that justice was not served by the omission of
that evidence, from acting in terms of S 186. To my mind there is
little that these witnesses could have added.

Appellant’s
counsel submitted that the police investigation was not conducted
diligently and that the evidence presented to the court is scant in
the extreme. It was submitted that the evidence of the one witness,
Sgt Morgan called by the State was flawed. It had short comings and
was inadequate in parts. For example, counsel argued that there is
no evidence before the Court that Police ever investigated the colour
of the car, that the police ever circulated particulars of the
vehicle to find out if it had been reported stolen, whether Detective
Sgt Morgan ever attempted to determine if the vehicle has any
distinguishing features, whether there were security numbers, whether
any attempts, through etching, were made to see whether the original
chassis or engine number could be recovered, whether there was any
ignition key which was used initially. Counsel questioned why
material witnesses who could have assisted the State case were not
called, e.g Mr Haikera (the owner of the Jetta whose particulars were
found on a plate screwed onto the Volkswagen Golf), Mr Karamata (who
was the owner of the engine in use in the Volkswagen Golf) or Mr
Fender, from Spare Parts Centre, the source of the engine in the
Volkswagen Golf. In a young and developing democracy the police do
not always possess all the facilities and resources that they ought
to have or need and thus such omissions will be expected from time to
time. As long as the State has sufficient other evidence, such
omissions can be overlooked.

With
regard to the question whether the vehicle was stolen, the respondent
argued that it was not necessary to seek and call the complainant to
prove that the vehicle was stolen as the appellant did not challenge
the claim that the vehicle was stolen, that on an examination of the
totality of the evidence, including that of the appellant taken
together with the circumstantial evidence and the probabilities of
the case, the learned trial magistrate’s logical deductions were
overwhelming and pointed to the one and only conclusion that the
State had proved the case beyond reasonable doubt. The appellant’s
authority and exercise of physical control over the Volkswagen Golf
leads to the one and only answer.

In
our view the Court properly and fairly evaluated the evidence of
Eunice Kariposira and Mr Xoagub. Regarding the contradictions in the
evidence of Kariposira and the inconsistencies with the evidence of
Xoagub, I am in agreement with the submissions of the State that the
fact that a witness contradicts himself/herself or is contradicted by
other witnesses does not show that the witness is a liar and his/her
evidence should be wholly rejected. In S v Oosthuizen 1982 3
SA 571 T, Nicolas J considered the question of contradictory
testimony and self contradictions in a witness. After citing
passages in Wigmore on Evidence vol III chapter 35 and 36, he
concluded, at page 576G:

“But the process does not
provide a rule of thumb for assessing the credibility of a witness.
Plainly it is not every error made by a witness which affects his
credibility. In each case the trier of fact has to make an
evaluation, taking into account such matters as the nature of the
contradictions, their number and importance, and their bearing on
other parts of the witness’s evidence".

(See also: S v Mlonyeni
1994 2 SACR 261 E; S v Nair 1993 1 SACR 451 A; S v Mkohle
1990 1 SACR 98 A).

It
is particularly important to bear the above dicta in mind when
looking at the contradictions between the witness Kariposira, her
brother, and the appellant. What point could possibly be served by
their denial of acquaintance with Xoagub when there was so much to be
gained from his evidence supporting the second accused’s claim of
the visits otherwise denied by the appellant or that the appellant
handled or exercised possessory powers over the Volkswagen Golf? It
is clear that Xoagub’s explanation that accused 2 and his sister
Edith Karipozira were confused by the use of his real name as opposed
to his nickname of “Kleintjie" which they were familiar with,
is reasonable and satisfactory in the circumstances. In our view the
evidence of Edith that the appellant came to the house with the Golf
a number of times before eventually leaving it there in place of the
Caddy must be accepted. If this fact is accepted, there is no reason
why accused 2 would have refitted the chassis plate or broken the
ignition or the right front door handle. To what end? It seems to us
that the only person who had reason to disguise the identity of the
Golf was the person who initially brought it there, namely the
appellant.

The
second accused’s account of the recovery of his vehicle in
Okakarara through the intervention of a third party, his subsequent
arrival at the scene and the revelations about the whereabouts of the
blue Golf and the account of the agreement to exchange vehicles is so
unique and detailed it can only be true. What is more, his
explanation throughout was consistent, already from the time that he
visited the police station at Okakarara. On the basis that the
initial discovery of the stolen Golf in his possession led to some
suspicion that he was in possession of recently stolen property, the
consistency of his explanation is relevant and serves his credibility
(See Hoffmann & Zeffertt (supra) at p123.)

The
facts of this case call for the application of the rules of logic: R
v Blom 1939 AD 288. The proved facts and evidence of the damaged
door lock, the damaged ignition, the false chassis plate, lead only
to one compelling conclusion: that the blue Volkswagen Golf was a
stolen vehicle and the appellant was the person responsible or was
aware that it was stolen. Obviously the key to the Golf would not fit
the door lock – appellant was compelled to remove it lest accused 2
discovers that the key does not fit.

Theft
is a continuing crime, by this is meant that “………theft
continues as long as the stolen property is in the possession of the
thief or of some other person who was a party to the theft or of some
person acting on behalf of or even, possibly, in the interests of,
the original theft or party to the theft”. (R v Von Elling
1945 AD 234, 246).

There
is no evidence here of who the owner of the car was or indeed that
the appellant was the original thief, or was party or assisting some
person with interest in the car. In my view it matters very little
in the circumstances. Having regard to the evidence as a whole in
particular the condition of the vehicle it is inevitable to come to
the conclusion, as the only one possible conclusion on the proved
facts, that the appellant was well aware that the blue Volkswagen
Golf was stolen. The fact that the appellant was in process of
alienating it in a contract of exchange as his own made the appellant
just as guilty as the original thief: S v Cassiem 2001 1 SACR
489 SCA; S v Nakale 1994 NR 264.

The
charge brought alleged that the vehicle belongs to person/persons
unknown. As the appellant’s counsel rightly conceded that it was
not necessary on a charge of theft to prove ownership: See S v
Kariko 1998 2 SACR 531 Nm 535. The only issue is whether the
vehicle was a res nullius or res derelictae.
The expressions are defined in Snyman Criminal Law 4th
Edition, page 480-481 at sub paras (ii) and (iii):

“Res derelictae,
that is, property abandoned by its owners with the intention of
ridding themselves of it………….

Res nullius, that is,
properly belonging to nobody although it can be the subject of
private ownership, such as wild animals or birds other than those
reduced by capture to private possession”.

In
this matter the evidence of Detective Sgt Morgan was that all
identification marks of the Volkswagen Golf had been removed, a
foreign plate carrying a chassis number of another vehicle had been
partly screwed into position but revealed an undoubted tampering
beneath. The only deduction that can be made from these blank
details is that who ever stole the vehicle did everything to ensure
that the owner, whoever he may have been, could never identify the
vehicle, had the vehicle belonged to no one or been abandoned there
would never have been a need to go to such lengths to hide its
identity. In any event in this case there is ample evidence that the
appellant showed all the actions of a proprietor who valued his
possession in that, on the common evidence at the time of the deal to
exchange the cars, the appellant determined the value of the blue
Golf as N$3000.00.

In
the result I find that the Court did not err in its findings that the
Volkswagen Golf was stolen and the appellant was involved in such
theft, and is thus guilty of theft.

The
appeal is therefore dismissed.

_____________________

GIBSON,
J

I
agree

________________________

VAN
NIEKERK, J

BEHALF
OF THE APPELLANT MR S. UEITELE

INSTRUCTED
UEITELE LEGAL PRACTITIONERS

ON
BEHALF OF THE RESPONDENT MR KUUTONDOKWA

INSTRUCTED
PROSECUTOR GENERAL