CASE
NO. 178/07

IN
THE HIGH COURT OF NAMIBIA

THE
STATE

and

REINHOLDT
GUIM

and

ELIFAS
HANEB

HIGH
COURT REF NO. 1703/07

CORAM: MANYARARA,
AJ
et
HINRICHSEN A.J.

Delivered
on: 21 December 2007

REVIEW
JUDGMENT

HINRICHSEN
A.J.

[1] In this matter the two accused
were charged with the offence of stock theft in terms of the Stock
Theft Act No. 12 of 1990 as amended (the Act). They were charged
with stealing one sheep to the value of N$520,00. They both pleaded
guilty and were duly convicted on their plea. They were sentenced
each to two years imprisonment. The penalty clause, Section 14 of the
Act reads as follows:-

14.
(1) any person who is convicted of an offence referred to in section
11(1)(a),(b),(c) or (d) that relates to stock other than poultry-

(a) of which the value -

(i) is less than N$500,00, shall be
liable in the case of a first conviction, to imprisonment for a
period not less than two years without the option of a fine;

(ii) is
N$500,00 or more, shall be liable in the case of a first conviction,
to imprisonment for a period not less than twenty years without the
option of a fine.

[2] It is immediately evident that as
far as sentencing under the Act is concerned the value of the stock
in question is of cardinal importance. It was dealt with by the
Magistrate in terms of the Record as follows:-

Accused No. 1

"CRT: It is said that the value
of the sheep is valued at N$ 520-00, Do you admit or Dispute?

Acc.
(1):I dispute.

CRT: If
you dispute that, what do you think is the value?

Acc. (1):N$ 350-00."

Accused
No. 2

"CRT: Mr PP
the Accused disputes the value of the sheep, do you accept the value
that he suggests or not?

PP: No
dispute.

CRT: It
is alleged that the value of the sheep is N$ 520-00, do you admit or
dispute that?

Acc. (2)
I dispute, I think it is about N$ 300-00.

CRT: The accused disputes the value of
the sheep, what is your position?

PP: I don’t dispute it."

[3] There is nothing on the Record to
indicate that the importance and the impact of the penalty clause was
brought to the attention of the two accused. It seems as though by
sheer chance they were saved from being convicted on the basis of the
value of the sheep being N$520,00. Luckily they disputed this
value, they did not admit it and their counter valuation of N$350,00
and N$300,00 respectively were accepted by the Prosecutor and as far
as sentencing was concerned also by the Court.

[4] It cannot be stressed enough that
it is the Court’s duty to highlight the issue of the value of the
stock and to instruct the accused accordingly. It is more over the
duty of the prosecution to lead proper evidence of the stock value
and to afford the accused the opportunity to consider this issue
properly.

This is crucial.

[5] But the complainant in this case
did not give value evidence relating to the sheep. The value
evidence tendered by the State is hearsay. The sum total of that
evidence is:-

"it is alleged that the value of
the sheep is N$520,00….."

[6] It is inadmissible evidence. The
accused cannot plead to inadmissible evidence. The accused can
therefore not be sentenced. The accused can thus also not be
convicted since they cannot be sentenced.

[7] The sentencing proceedings in this
case have therefore been inadequately conducted.

[8] Accordingly the sentence and
conviction imposed by the Magistrate of Outjo are set aside.

________________

HINRICHSEN A.J.

I
agree

_________________

MANYARARA, AJ