CASE NO.: CA 64/08

IN THE HIGH COURT OF NAMIBIA

In the matter between:

ROBERTO MULOMBO
APPELLANT

and

THE STATE RESPONDENT

CORAM: HOFF,
J. et PARKER,
J

Heard on: 2009.05.22

Delivered on: 2009.05.22 (Ex
tempore)

___________________________________________________________________________

JUDGMENT:

HOFF. J: [1] This
is an appeal against the conviction and sentence, imposed in the
Magistrate’s Court in the district of Windhoek where the
appellant was convicted of contravention Section 83(2) of the Road
Traffic and Transport Act 22 of 1999, in that he used a motor vehicle
without the owner’s consent and he was sentenced to three years
imprisonment.

[2] The appellant at the stage
of the commission of the offence was employed by the complainant as a
taxi driver. The Complainant testified that the working day of the
appellant stated at 06:30 in the morning, and that he has to book in
the earnings at 9. It is not clear from the record whether it is
09:00 in the morning or 21:00 at night.

[3] The submission by Mr Truter
was that, the appellant was correctly convicted by the Magistrate
since he had used the motor vehicle at 03:30 in the morning and that
was after the time that he was supposed to have parked this vehicle
at his employer’s place of residence.

[4] It is however not clear
from the record that the appellant had, on that particular weekend,
not the permission to use the motor vehicle after 9 by the
complainant. Certain passages from the record itself create the
impression, in my view, that the appellant during that particular
weekend had been given the permission to have that motor vehicle in
his lawful possession.

[5] Although the appellant when
he testified replied to questions during cross-examination that he
had no permission to use that motor vehicle during 03:30 in the
morning, he qualified that answer by saying, should a customer
require assistance from him, then he would be entitled to use the
vehicle and to assist that customer.

[6] The important issue that
must be decided in this particular Appeal is whether the appellant
did not have the necessary consent from his employer at the time when
he used the motor vehicle, 03:30 the Sunday morning. It does not
appear from record that the appellant was categorically denied use of
the motor vehicle during that time of the morning.

[7] In any event, the State has
the onus to prove a commission of an offence beyond a reasonable
doubt. Where a Court entertains any doubt, the benefit of the doubt
should be given to an accused person and he should be found not
guilty.

[8] The appellant testified
that the agreement he had with this employer did not indicate that he
could not use the motor vehicle during the night or during the day.
He testified only that the agreement with the employer was that he
had to bank in the earnings at 09:00 and that he could take the
vehicle home with him. The appellant has not been shown during
cross-examination to be a witness whose evidence this Court should
reject, or that his evidence was false, or that his evidence was so
improbable as to be rejected as false.

[9] This Court is therefore of
the view that the Magistrate erred when he found that in fact the
appellant has used the motor vehicle without the consent of the
complainant. This Court is therefore of the view that as a result of
this misdirection by the Magistrate the accused was wrongly
convicted.

[10] In the result the
conviction and the sentence are set aside.

___________

HOFF, J.

I agree

_____________

PARKER, J

ON BEHALF OF THE
APPELLANT: IN PERSON

Instructed by:

ON BEHALF OF THE
RESPONDENT: MR TRUTER

Instructed by: OFFICE
OF THE PROSECUTOR-GENERAL