NOT REPORTABLE
CASE
NO. CA 28/2008
IN THE HIGH COURT
OF NAMIBIA
In the matter between:
SIMON
GANEB APPELLANT
versus
THE
STATE RESPONDENT
CORAM: HOFF,
J. et
VAN NIEKERK, J
Heard on: 2008.11.14
Delivered
on: : 2008.11.14 (Ex
tempore)
Reasons on: 2009.11.27
APPEAL
JUDGMENT:
HOFF,
J.: [1] The
appellant together with a co-accused was charged in the magistrate’s
court Karibib with theft of seven head of cattle (valued at N$21
000.00) in contravention of the provisions of the Stock Theft Act,
(Act 12 of 1990).
The appellant and his
co-accused pleaded not guilty to the charge. The State led the
testimonies of eight witnesses and the appellant testified in his own
defence.
[2] The appellant was
convicted at the end of the trial of the theft of seven head of
cattle and was sentenced to 5 years imprisonment. The co-accused of
the appellant was convicted of possession of suspected stolen
property (three carcasses) and sentenced to a fine of N$5 000.00 or
24 months imprisonment.
[3] On
the day when the appeal was argued the conviction of theft of seven
head of cattle was substituted with the conviction of theft of three
head of cattle (from unknown individuals). The sentence imposed in
the court a quo
was confirmed. We indicated then that the reasons for our finding
would be provided in due course. These now are the reasons.
[4] It
must be mentioned that a Mr Michael initially presided as magistrate
but subsequently when the case was part-heard resigned from the
Ministry of Justice and the matter was heard de
novo by magistrate Ms
Kröhne and it is against the latter magistrate’s
conviction and sentence which the appeal lies.
[5] It was not disputed
that the seven head of cattle referred to in the charge sheet
belonged to the three different complainants.
[6] It was alleged in the
charge sheet that three head of cattle belonged to Elizabeth Nanus,
one head of cattle belonged to Michael Uirab, and three head of
cattle belonged to Engelhard Noabeb.
[7] Levi
Jagger, the son of complainant Engelhard Noabeb testified that on
1 December 2001 he opened the kraal and let the
cattle out for grazing. The cattle never returned and the next day
he went in search of the cattle. He eventually reached a place where
he observed seven blood spots where animals had been slaughtered.
The police arrived on the morning of the 4th
of December 2001 and he accompanied the police to the place where the
animals had been slaughtered. He identified three skins of their
cows and one skin of an animal which belonged to Ms Elizabeth Nanus.
He also observed at the slaughtering place tracks of a motor vehicle
as well as footprints of a number of people.
[8] Michael Joseph Uiras
testified that on 2 December 2001 he was informed that a number of
animals had been slaughtered in their area and that he was
accompanied to the scene where he observed a number of bloodstains on
the ground, about seven skins, as well as the tracks of a vehicle
which appeared to have pulled a trailer. The police was called to
investigate. Two days later he was summoned to the police station
where he identified one of the heads of the slaughtered cattle as one
of his head of cattle.
[9] Engelhard Noabeb
confirmed that his son informed him that three of their cows had been
slaughtered. Elizabeth Nanus testified that she received a telephone
call regarding the disappearance of some of her cattle. She was
shown skins of cattle in the garage of Michael Uirab where she
identified three of those skins as skins which belonged to her
cattle.
[10] Solomon Naobeb
testified that he was a senior headman and attached to a specific
traditional authority. It was not clear from the record to which
traditional authority he was attached to but it appears from the
exhibits (A and B) handed in through him, that he was in all
likelihood at that stage the headman for Anker in the Kamanjab area.
[11] According to him his
traditional authority may not issue permits to individuals in order
to transport stock from one place to another but may issue an
acknowledgement. An individual may obtain a permit from the relevant
authorities to transport stock.
Exhibit A purports to
authorize the appellant to transport the carcass of one head of
cattle from Anker to Walvis Bay.
Exhibit B purports to
authorize the appellant to transport the carcasses of two heads of
cattle from Anker to Walvis Bay.
[12] A
stamp “KING COUNCIL,
Private Bag 5006 KAMANJAB, NAMIBIA”
appears on each of the exhibits and on each one the date “2001-12-01”
appears. A signature purporting to be the signature of the person
who authorised the transportation of the carcasses appears on each of
the exhibits (A and B).
[13] Solomon
Naobeb testified that exhibits A and B had not been issued by his
office and that the signatures which appear on the two “permits”
did not belong to any one of the officials at his office. In
addition the stamps appearing on exhibits A and B differ from the
stamp used by his office. He testified that the appellant was known
to him but that he was unable to testify whether the appellant
visited the traditional authority for a permit to transport meat to
Walvis Bay since he was absent at the stage the permits had allegedly
been issued.
[14] Rheinhard
Aruseb testified that he was a traditional councillor and that from
1st
of December 2001 he was in charge of the offices of the same
traditional authority. Exhibits A and B had not been issued by him
to the appellant. The stamps appended on exhibits A and B were not
the stamps of the relevant traditional authority and the signatures
on the exhibits were unknown to him. He testified that he had never
met the appellant and that he was the only one in the office who
could have issued acknowledgements.
[15] Walter Adriaan Rutz
testified that during December 2001 he was a member of the Namibian
Police attached to the Criminal Investigation Department at Walvis
Bay. On 4 December 2001 he received information regarding theft of
stock in Usakos area. During the course of his investigation in
Walvis Bay he, together with his colleague Cst Hoëseb, visited a
house where meat was being sold and there the owner produced a permit
and informed him that he bought the meat from a certain man without
disclosing the identity of the alleged seller. This person however
directed him to a house where the alleged seller apparently resided.
Whilst they were at this specific house the accused arrived there and
was pointed out by this unknown person as the person who had
allegedly sold the meat to him.
[16] Andreas
Nekwaya testified that on 2 December 2001 the appellant together with
his co-accused arrived at his house and informed him that he had meat
to sell. He bought the carcasses of two heads of cattle for the
amount of N$1 500.00. The co-accused was the driver of the
vehicle and the appellant did the off-loading from a trailer. The
vehicle used was a sedan vehicle. The appellant wrote on a piece of
paper in his presence that he had bought the meat from the appellant.
On the paper appeared a stamp of “Kamanjab
district”. Both of
them signed on the piece of paper. The piece of paper received from
the appellant was neither exhibit A nor exhibit B.
[17] The
appellant testified that on 1 September 1998 whilst serving a
sentence in the Windhoek Prison a fellow inmate, Jacobus Hamaseb,
borrowed N$2 000.00 from him. They agreed that Hamaseb would pay him
three cows after his release from prison. Appellant was released
during 2001 and he asked his co-accused Michael Narib to assist him
to get the promised livestock. Narib provided the transport. On
1 December 2001 appellant drove to the region of Anker where he met
“the man”
(presumably Hamaseb). Heads of cattle were slaughtered and
thereafter appellant travelled to the house of senior headman Ernst
Gurirab, where proof of ownership was shown to the headman.
[18] On Sunday 2 December
2001 between 08h00 and 09h00 he arrived in Walvis Bay with the
carcasses of three head of cattle. Appellant requested Narib to
assist him in driving the motor vehicle since appellant apparently
was too tired to do so. Appellant however volunteered to off-load
the carcasses from the vehicle himself. Two of the carcasses were
off-loaded at the house of one Andreas Nekwaya and the third carcass
was off-loaded at the house of a certain lady. Appellant gave pieces
of paper to the two respective buyers on which each of the buyers
signed.
[19] During
cross-examination the appellant testified that Jacobus Hamaseb
resided in the Kunene region; that the permits were issued to the
owner of the cattle by the headman; that appellant had asked for two
permits to be issued since there were two buyers; that Hamaseb’s
name appeared on the permits but that the permits were given to him
since he had to travel with the meat; that the permits were issued
by the King Council of Anker and that the original permit (paper)
issued to appellant got lost.
[20] Michael Narib
testified and confirmed that on 2 December 2001 the appellant
borrowed his vehicle and trailer in order to collect 3 head of
cattle. The next day he returned with the meat and they went to
off-load the meat. Two days later he was arrested by the police.
[21] The
appellant in his notice of appeal set out as grounds of appeal, inter
alia, that the magistrate
erred in law and/or on the facts by convicting him of theft of stock
in contravention of the provisions of Act 12 of 1990 and in
particular that the evidence presented by the State did not link him
to the theft of those head of cattle alleged to have been stolen from
the complainants.
[22] The
magistrate in her reasons for convicting the appellant, inter
alia, stated as follows:
“The
appellant never denied selling carcasses to Andreas Nekwaya and he
admitted to selling a carcass to a certain lady. It was suspicious
to the court’s mind that the appellant borrowed a vehicle with
a trailor on 2nd
December 2001 to collect cattle which was owed to him, the every same
date that the stock theft incident occurred in the Usakos area.
Furthermore the tracks of a vehicle pulling a trailor were observed
on the scene and the seven heads of cattle were stolen and
slaughtered on 2nd
December 2001. The skins found at the scene were burned (sic) by the
appellant in an attempt to avoid identification of the cattle via
their skins.
The
“permits” furnished by the appellant to Andreas Nekwaya
was forged as it was not issued by the traditional authority
officials of the Kamanjab district. It was furthermore suspicious to
the court’s mind that two permits were issued in respect of
three heads of cattle. The two traditional authority members
testified that only one acknowledgement is issued in respect of a
number of livestock or carcasses.
The
two “permits” exhibit A and B did also not contain the
earmarks and brandmarks which a standard acknowledgement must
contain.”
[23] I agree with the
magistrate if one has regard to the evidence presented by the State,
that a suspicion must have been formed that the appellant must have
been one of the persons who had stolen the cattle of the
complainants. However to convict an accused for any criminal
conduct, a suspicion alone is not sufficient. The State must prove
the commission of the offence beyond reasonable doubt. There is no
evidence that the tracks of the motor vehicle and trailer observed on
the scene of crime (as testified to by some State witnesses) were
compared with the tracks of the motor vehicle and trailer used by the
appellant and found to be similar. Andreas Nekwaya testified that
when the appellant came to off-load the two carcasses he saw the
heads of two cows. However no evidence was presented as to what
happened to these two heads and thus there is no evidence that the
two heads referred to by the witness Nekwaya were heads of two of the
cows stolen from any one of the complainants.
[24] Section
11 (1) of Act 12 of 1990 reads, inter
alia, as follows:
“Any
person who is charged with the theft of stock or produce may be found
guilty of –
(a) the
theft of or an attempt to commit the theft of such stock or produce;
Subsection 2 reads as
follows:
“Any
person charged with theft of stock or produce belonging to a
particular person may be found guilty of any of the offences
mentioned in subsection (1) notwithstanding the fact that the
prosecution has failed to prove that such stock or produce actually
did belong to such particular person.”
[25] It is common cause
that the three carcasses appellant sold did not belong to any cattle
of which he was the owner, but to someone else. Appellant’s
explanation was that he received these carcasses as payment of a debt
owed to him by one Jacobus Hamaseb. He received these carcasses from
Hamaseb in the region of Anker and he was authorised (by way of two
permits) to transport these carcasses to Walvis Bay. The evidence
presented by the State was that exhibits A and B (in which appellant
had allegedly been authorised on 1 December 2001 to transport the
carcasses) had been forged.
[26] Solomon Naobeb
testified that before the traditional authority issues any
authorisation the official must physically inspect the carcass or
livestock in order to verify ownership of such carcass or livestock
by inspecting the brandmarks or earmarks. My understanding of his
evidence is that this would be possible where the carcass is
accompanied by the skin and the head of the animal. He further
testified that where meat is given to an individual, that the owner
of such animal would give a letter to the transporter of the meat
stating the origin of the meat and the fact that the meat had been
given to such transporter.
[27] The appellant never
disputed this evidence neither did he dispute the evidence that no
authorisation was given to him by any official of the traditional
authority to transport three carcasses.
[28] I
am alive to the fact that an accused person has no onus to prove his
innocence but where the State has presented prima
facie evidence of the
commission of a crime it is trite law that an accused person must
provide an explanation which is reasonably true in the circumstances.
The explanation must be an innocent one i.e. it must be inconsistent
with guilt of theft.
(See
R v Parrow 1973 (1) SA 603 A; S v Letoba 1993 (2) SACR 614 (w) ).
[29] Where an accused
person gives false evidence his version may be discarded and the same
adverse inferences may be drawn as if he had given no evidence at
all.
[30] The
defence of the appellant in essence was that he could not have been
the thief since firstly, he was not at the place where the head of
cattle had allegedly been slaughtered (an alibi), and secondly, that
he received the carcasses from the lawful owner as payment for an
outstanding debt. The “permits”
authorising the transportation of the carcasses had been forged. The
appellant failed to call Jacobus Hamaseb (the alleged owner of the
carcasses) and failed to call Ernst Gurirab (the senior headman who
allegedly issued the two “permits”).
These persons were available and there appears on record no
acceptable explanation why the appellant chose not to call them as
defence witnesses.
[31] In
Elgin Fireclays Ltd v Webb
1947 (4) SA 744 (A) Watermeyer CJ
stated the following at 749,
750:
“It
is true that if a party fails to place the evidence of a witness, who
is available and able to elucidate the facts, before the trial Court,
his failure leads naturally to the inference that he fears that such
evidence will expose facts unfavourable to him. (See Wigmore ss 285
and 286). But the inference is only a proper one if the evidence is
available and if it would elucidate the facts.”
(See
also R v Phiri 1958 (3) SA
161 (A) at 165; Minister Estates (Pty) Ltd v Killarney Hills (Pty)
Ltd 1979 91) SA 621 (A) at 624). It
however depends upon the particular circumstances of each case
whether a negative inference ought to be drawn.
[32] I
cannot find any misdirection by the magistrate when she rejected the
appellant’s version as not “reasonably
possibly true”.
[33] It is not disputed
that seven head of cattle had been stolen from the three complainants
mentioned in the charge sheet.
[34] The appellant
shortly afterwards sold three carcasses of cattle and his explanation
under what circumstances he acquired ownership of those carcasses was
correctly rejected by the magistrate. I have no doubt that these
carcasses were stolen from some person or persons
[35] I am however not
satisfied that on the facts of this case that the State succeeded in
proving beyond reasonable doubt that the appellant stole seven the
head of cattle belonging to the complainants. Although there is a
suspicion that the appellant stole all seven head of cattle, the
evidence linking him to the theft of those specific head of cattle is
simply not conclusive. It was for these reasons that the conviction
in respect of seven head of cattle had to be set aside and
substituted with theft of three head of cattle. In terms of section
11 (2) of Act 12 of 1990, a conviction of theft may be made even in
those instances where the State failed to prove that stolen stock
belonged to a particular person, as was the case in this matter.
[36] The magistrate did
not in her reasons deal with the sentence imposed. The appellant was
sentenced to 5 years imprisonment. The appellant has a number of
previous convictions including three convictions for theft (other
than stock), one conviction for receiving stolen property, two
convictions for housebreaking with intent to steal and theft, and two
convictions of theft of stock (cattle) in contravention of the
provisions of Act 12 of 1990.
[37] It appears from the
record that the appellant admitted those previous convictions. I am
of the view that the magistrate did not err in any manner by imposing
a sentence of 5 years imprisonment. I am further of the view that
even where this Court has confirmed the conviction of theft of only
three head of cattle that a period of 5 years imprisonment was an
appropriate sentence.
[38] In the event the
following orders were made:
1. The appeal is in part
upheld and in part dismissed.
2. The conviction of
theft of seven head of cattle is set aside and substituted with a
conviction of theft of three head of cattle from persons unknown to
this Court.
3. The sentence of 5
years imprisonment is confirmed.
_________
HOFF,
J
I agree
_______________
VAN NIEKERK, J
ON BEHALF OF THE
APPELLANT: IN PERSON
Instructed by:
ON BEHALF OF THE STATE
MR MATOTA
Instructed by:
OFFICE OF THE PROSECUTOR-GENERAL
Ganeb v S (CA 28/2008) [2009] NAHC 128 (27 November 2009);