NOT
REPORTABLE

CASE
NO. CA 207/2007

IN
THE HIGH COURT OF NAMIBIA

In the matter
between

KAENDAPEKE MUHENJE 1^ST
PPLELLANT

ANDREAS
VERIRANSA TJIHENGE 2^ND
APPELLANT

versus

THE STATE RESPONDENT

CORAM:
HOFF, J. et
PARKER, J

Heard
on: 2009.02.13

Delivered
on: 2009.02.13 (Ex
temporae)

APPEAL
JUDGMENT:

HOFF,
J: [1] The
Appellants are appealing against their sentence. In the Magistrate
Court they pleaded guilty to the commission of the offence of theft
of stock.

[2] In terms of the
Stock Theft Act, where the value of the stock is in excess of five
hundred Namibian dollars (N$500.00), the magistrate who convicts an
accused person must sentence him to a minimum sentence. That is the
case where a Magistrate finds that there are no compelling and
substantial circumstances. Where those circumstances exist, the
magistrate has a discretion to impose a sentence lesser than the
minimum prescribed sentence.

[3] Now, in order
for the magistrate to come to the conclusion whether or not there
exist, compelling and substantial circumstances, he must have some
information before him, from the accused person’s personal
circumstances and other factors which he should then consider in
order to make such a finding.

[4] Mr Matota who
appears on behalf of the Respondent, concedes that the Magistrate
should have questioned the accused persons at that stage, in order to
get sufficient information before he could have come to the
conclusion that there were no substantial circumstances. His failure
to do so, amounts to a misdirection. This Court, sitting as a Court
of Appeal has certain powers one of which is that a matter may be
referred back to the Magistrate’s Court with appropriate
instructions.

[5] This Court
cannot at this stage determine an appropriate sentence, since this
Court is in the same position having just the record in front of it,
as the Magistrate did, and this Court can also not at this stage
question the two appellants in order to elicit the necessary
information to determine whether or not there were compelling and
substantial circumstances. That is why this Court now refers this
matter back to the Regional Court Magistrate to sentence them afresh.
The Regional Court Magistrate is ordered to question the two
appellants sufficiently and to get useful information and to consider
afresh whether or not there were compelling and substantial
circumstances.

[6] In order for
the Magistrate to consider afresh the sentence, after questioning the
Appellants before this Court, this Court must of necessity at this
stage, set the sentence aside, which was imposed by the Magistrate.

[7] The Court also
directs the Magistrate in this regard when he considers a new
sentence, to take into account the period that

they have been in
custody. This Court confirms the conviction in respect of each of
the Accused persons. They will remain in custody until such time as
they will be dealt with by the Regional Court Magistrate. This Court
will also take the opportunity to thank Mr Kaumbi as well as Mr
Mutota for their assistance and submissions made in this regard, in
order for the Court to finalise this matter.

__________

HOFF, J

I agree

_____________

PARKER, J

ON
BEHALF OF THE 1^ST
APPELLANT: MR KAUMBI

Instructed
by: VAN DER MERWE-GREEFF INC.

ON BEHALF OF
THE STATE MR MUTOTA

Instructed by:
OFFICE OF THE PROSECUTOR-GENERAL