Court name
High Court
Case number
CA 28 of 2006
Title

S v Alugodhi (CA 28 of 2006) [2008] NAHC 100 (06 October 2008);

Media neutral citation
[2008] NAHC 100





It is undisputed that the complainant George Mbundu’s Toyota Hilux 4x4 was stolen on 12 July 2000







CASE NO: CA 28/06







IN THE
HIGH COURT OF NAMIBIA







In the
matter between
:







ANDREAS
ALUGODHI APPELLANT







and







THE STATE RESPONDENT






CORAM:
DAMASEB, JP
et
NDAUENDAPO, J















Heard
on:
06
October 2008







Delivered on: 06 October 2008











APPEAL JUDGMENT



DAMASEB,
JP
:
[1]
The appellant whom I shall refer to as “the accused” was
found guilty in the Regional Court, Oshakati, of theft of a motor
vehicle, read with the provisions of Act 12 of 1999 ( The Motor
Vehicle Theft Act). He was accused of stealing a Toyota Hilux 4x4
belonging to one James Mbundu. The theft was alleged to have taken
place on the 12
th
of July 2000. He pleaded not guilty to the charge and in his plea
explanation stated as follows:







I
did not steal a car. On the 12
th
July 2000 I was arrested by the police after they found parts of the
car at my house. I do not know whether the parts are from a stolen
vehicle. They were brought to my house by Uushona Shapaka. He said he
would come to collect them. I told the police officer Paul Avelinus
but he just said he knew what he was doing.”









[2]
It is undisputed that the complainant James Mbundu’s Toyota
Hilux 4x4 was stolen on 12 July 2000. That vehicle was found very
soon after it was stolen with some parts missing. The stolen vehicle
was, when found, also without its four wheels and was placed on
bricks.







[3]
Asser Moses, a police officer, testified that the night before the 12
July 2000 he saw people remove bricks from his house and that of his
neighbour. The people who picked the bricks were driving a Mercedes
Benz car with a Swakopmund registration number. Moses, prudently,
made a note of the registration number of the Mercedes Benz which
happened to coincide with the vehicle of the accused. Moses testified
that the bricks on which the stolen vehicle had been placed were
similar to the bricks that were removed from his and the neighbour’s
home by the accused’s vehicle.







[4]
At the home of the accused, spare parts were found in the boot of a
Mercedes Benz with a Swakopmund registration number belonging to the
accused. A Willard battery was also found in the boot of a Skyline
belonging to the accused; while a radiator was found at the back of
the accused’s house. Four wheels were then found at the house
of one Antonius Hamutwe. These wheels were identified by the
complainant as his and were removed from his stolen vehicle. Hamutwe
testified that it was the accused that brought the wheels to his home
and wanted to sell them to him but he refused. Hamutwe’s
version of the presence of the accused with tyres at Hamutwe’s
home was corroborated by Hamutwe’s wife. Although the appellant
denied the version of Hamutwe and his wife, the magistrate who heard
and observed the demeanour of the witnesses believed Hamutwe and
rejected the accused’s denial. I can see no reason for
interfering with the magistrate’s credibility finding. What
this means is that soon after the vehicle was stolen and the wheels
removed therefrom, the accused was in possession of them and wanted
to sell them.







[5]
The complainant also identified as his property the Willard battery,
the radiator, and the carburettor found in the possession of the
accused. Other items identified as belonging to the complainant and
found in the possession of the accused were: a steering wheel cover
and a jack. The accused never denied that of the parts found in his
possession were items removed from the complainant’s stolen
car. Instead the accused said he received the parts from one Uutoni
Shapaka whom he never called as a witness or provided the address to
enable the authorities to verify.







[6] According to the
investigating officer Paulus Avelinus who testified at the trial, the
accused at some stage mentioned to him that the parts of the stolen
car found at his house were brought by Shapaka. This witness
testified on this score as follows:







I
can recall one day when he said that the parts belonged to Uushona
Shapaka. He said he was in Windhoek. He said if I could give him bail
he would take me. He could not provide me with the address of that
person. I could not give him bail. If he could give me information, I
would have gone to look for Uushona Shapaka.”







[7]
A finger print of the accused was lifted from the right fender above
the front wheel of the stolen vehicle. In spite of the accused’s
purported innocent explanation therefor, the trial court found as
proven that the accused’s fingerprints were found on the stolen
vehicle in circumstances pointing to him having had access to the
vehicle after it was stolen and thus pointing to his guilt. I see no
reason for upsetting this crucial factual finding by the trial
magistrate.







[8]
The trial court was satisfied that the state had proved the case
against the accused beyond reasonable doubt and quite properly
rejected the accused’s denial that he was involved in the
commission of the offence. The issues identified by Mr Namandje as
irregularities, to wit the Court’s refusal for the accused to
call Mr Oswald Shivute, the manner in which Mokahwa’s evidence
was dealt with while he was busy testifying; are not such as to
taint the conviction. The evidence implicating the accused remains
overwhelming and he was properly convicted. This appeal against
conviction is unmeritorious and it must fail.







[9] The accused had three
previous convictions: two for theft of a motor vehicle and one for
possession of a suspected stolen motor vehicle. The magistrate
imposed a direct term of 10 years’ imprisonment on him for the
present conviction. I see that the heads of argument on behalf of the
accused make no mention of the appeal against sentence. Just as well,
because there is no merit in the appeal against sentence too.







[10]
Accordingly, the appeal against both conviction and sentence is
dismissed.



















___________________



DAMASEB, JP















I agree















___________________



NDAUENDAPO,
J




ON BEHALF
OF THE APPELLANT:
MR
S NAMANDJE






INSTRUCTED
BY:
SISA
NAMANDJE & COMPANY










ON
BEHALF OF THE RESPONDENT:
MS
H JACOBS



INSTRUCTED
BY:
OFFICE
OF THE PROSECUTOR-GENERAL