Court name
High Court
Case number
CRIMINAL 12 of 2009

S v Zeleva (CRIMINAL 12 of 2009) [2009] NAHC 41 (02 April 2009);

Media neutral citation
[2009] NAHC 41


CASE NO.: CR 12/2009


In the matter between:






Delivered on: 02 April 2009


[1] The accused and two others
appeared in the magistrate’s court, Eenhana on two charges of
housebreaking with intent to steal and theft. They pleaded not
guilty and at the end of the trial only accused no. 1 was convicted
on both charges and sentenced to 24 months imprisonment, the charges
taken together for sentence.

[2] Although the case was already finalised on
the 30
of October 2007, the transcribed record was only ready by the 2
of April 2008 where after it was dispatched to the Registrar of the
High Court for review.

[3] When the matter came before the Reviewing
Judge he directed a query to the magistrate on the 21
of April 2008, requesting her to give reasons for the accused’s
conviction. The ‘reasons’ provided were the following:
1: was charged of two counts of house breaking (sic) with intent to
steal and theft. I convicted him as charged.”

Obviously not satisfied with the magistrate’s so called ‘reasons’,
a second query was directed to the magistrate in which the Reviewing
Judge clearly set out which aspects of the case he wanted the
magistrate to deal with in her reasons. According to the date stamp
the second query was received by the magistrate on 16 June 2008 but
the magistrate only responded thereto on the 25
of February 2009, almost eight months later, in the following terms:
“I agree with the honourable Review
Judge that the onus of proof rest in the state to prove the accused
guilty. I misdirected myself that Constable Maimbuta evidence
corroborate the evidence of the other police officer who testified to
that effect.”

[4] The magistrate’s response has absolutely
no bearing
on the issues raised in the query and it seems obvious that the
magistrate has no intention of giving a proper and reasoned response
as she was requested to do. I shall deal with this later herein.

[5] Issues on which the Reviewing Judge sought
clarity are the identification of shoe/footprints; an
admission/confession the accused made when “confronted” by the
police; and the court’s judgement where it reads that the accused
“…failed to show the Court on
balance of probability that he was not at the scene of the crime and
how his shoe prints or the foot prints… were at the scene of the
and further, that he “…failed
to show on a balance of probabilities how his shoe prints can’t be
matched with shoe prints at the scene of the crime if he was not
there. No onus rests on an accused to prove his innocence…”

The need to afford the magistrate the opportunity to explain herself
is evident from the contradicting views she had taken in the last
passage i.e. that there
an onus on the accused to show on a balance of probabilities that he
was not at the scene, compared to
resting on the accused.
Regrettably the magistrate chose not to clarify the ambiguity in her
judgement and merely conceded that she had misdirected herself on the
facts. I therefore take the record of proceedings as it stands.

[6] It is trite law that in a criminal case the
onus is on the State to prove the guilt of an accused beyond
reasonable doubt and no onus rests on the accused to prove his
innocence or to convince the court of the truth of any explanation
which he gives.
(S v Difford,
1937 AD 370) Accused admitted having passed the first complainant’s
shebeen earlier that day, but denied having been there at the time
when it was broken into, which is manifestly an alibi defence.
Likewise, the accused does not bear the burden of proving that his
alibi is true. Neither is he under any duty to prove that the bare
foot/shoeprints found at the scene of the crime were not his.
Therefore, where the magistrate in her judgment said that the accused
failed to show on a balance of probability that he was not at the
scene of crime or that he failed to show that the prints found did
not match his, she clearly misdirected herself on the law.

[7] This is an irregularity which infringes the
fundamental rights of the accused namely, that he is presumed
innocent until proven guilty according to law (Article 12 (d)). In
my view it falls in the category of irregularities or defects
delineated in
S v Shikunga and Another,
1997 NR 156 (SC), resulting in a
failure of justice, vitiating the outcome of the proceedings. This
notwithstanding, the court also misdirected itself on facts and the
application of the law related thereto.

[8] The State’s case essentially rests on
circumstantial evidence namely the finding of bare foot/shoeprints at
the shebeen which was broken into. The testimony of Rebecca Weyulu,
complainant on count 1, is that in the morning she observed a shoe
(tacky) print inside the shebeen where after members of the community
started following it and later returned with the accused. The room
of Maidhula Selma, complainant in count 2, is situated next to the
shebeen managed by Rebecca and when she returned there in the morning
she noticed three sets of prints inside her room. There was a tacky
print and two bare footprints, of which the one person was wearing
socks. In re-examination she was asked whether there were three
which the witness then confirmed. This clearly contradicts the
evidence she had given in chief.

[9] The next witness who gave evidence about
footprints was Kashongo Ruben, who came across some police officers
following the bare footprints of two persons up to the road where the
one person changed into shoes (boots). The witness on the way met
with an unknown man whom he then asked whether he was able to
identify the shoeprint. According to that person it belonged to the
accused. They continued following the prints up to a water point
where the prints became no longer visible. Because of the
information given to them earlier, they went looking for the accused
and when they eventually found him, they took him to the shebeen.
Without explaining how he came to that conclusion the witness said it
was the accused who had walked barefoot up to the point where he had
put on his shoes next to the road. The shoeprint found at that spot
however, was never returned to, in order to compare it with the shoes
the accused was found wearing the time he was apprehended. At the
shebeen he had to take off his shoes where after the size of his feet
were compared to the bare footprint found inside. Because it
matched, Kashongo concluded that it was the accused who had committed
both crimes. He further said that the accused, when asked about the
footprint replied:
“…that it was his
footprint and the other one he said looked like his footprint.”

What the witness meant by this, is not at all clear because the
answer is ambiguous.

He said the accused was then taken to the police
station where he was “
by a police officer and where after he
that they were the ones who broke into those cuca shops…”
asked whether the accused made the statement freely and voluntarily,
he replied that the accused gave the statement
he was confronted by the police officer.”

In cross-examination the witness said that he
saw the police officer ordering you to touch your hands down and by
that time you had bent down.”
explanation was given why the accused had been given such an order
and when the accused put it to the witness that he was assaulted at
the police station, the magistrate intervened and told the accused
not to make a statement. When he persisted with that line of
questioning the magistrate responded in the same manner and the
accused then stopped his cross-examination.

[10] The self incriminating admissions allegedly made by the
accused must be viewed in the circumstances where he had been
apprehended by members of the community; where after he was taken to
the shebeen which was broken into and accused of having broken in the
previous day; he was then taken to the police where he was confronted
and ordered to perform certain acts. In these circumstances I do not
believe that the witness was honest when he said that the witness
made these statements freely, as the contrary is quite evident from
the witness’ own testimony. When the accused tried to point that
out to the court during cross-examination the magistrate intervened
and disallowed him questions in that regard. This was highly
irregular as the accused was entitled to show to the court through
cross-examination that the witness was dishonest and an unreliable
witness. The court therefore could not have given any weight to the
so called admissions made by the accused.

[11] That brings me to the footprint
identification made in respect of the accused which is also the only
evidence referred to by the magistrate in her
judgment. The learned
magistrate erred when she stated that the accused’s
prints were compared with the shoe prints at the scene of the crime
and they matched.”
There is no
evidence on record supporting such finding as the accused was told to
take off his shoes in order to compare his
with the bare footprint found inside the shebeen. There was simply
no boot/shoeprint visible at the scene as it was alleged that the
accused had put these on only
reaching the gravel road. Furthermore, the fact that the size of the
accused’s feet matched the footprint found at the scene, certainly
does not meet the requirements for positively identifying the accused
beyond reasonable doubt.

[12] Footprints may, in the same way as
fingerprints, provide circumstantial evidence of identity and is
therefore, admissible evidence. However, it has been said that courts
must be cautious of relying upon such evidence, especially where it
is the only evidence against the accused, and the cogency of such
evidence must depend upon all the circumstances of the case. One
such circumstance is whether the imprint left by the shoe in question
has some distinctive characteristic or pattern.
v Mkhabela
1984 (1) SA 556 (A) at 563)
Unlike palm- and fingerprints which are unique, it is possible that
more than one person will have the same type of shoe or the same size
and shape of foot. It is for that reason that the court will not
convict on the evidence of a footprint alone, unless the print has
sufficient unusual or unique features to convince it that it is
identical to that of the accused. Furthermore, the court itself
should by means of a photograph be able to make the necessary
comparisons and to assess the cogency of the footprint evidence and
should not simply rely on the opinion of a witness.
v Petrus Even
Case No. CR 2775/92

[13] In the present case the bare footprint found in the shebeen
was followed up to the road where the person had put on shoes and
thereafter proceeded to a water point where it was destroyed. The
witness Kashongo Ruben testified that he compared the bare foot of
the accused with the print found and in his opinion it was the same,
without saying how he came to that conclusion as no mention was made
of any unusual features observed on the print. This is insufficient
and definitely does not satisfy the test of proof beyond reasonable
doubt. As mentioned earlier, neither was the accused under any duty
to show that the print found was not his.

[14] For the foregoing reasons it is clear that the accused could
not positively have been identified on the bare footprint found at
the scene of crime and as there is no other reliable evidence
implicating him with the commission of the offence, he could not have
been convicted on either of the charges preferred against him. The
conviction and sentence in respect of both charges therefore will be
set aside.

[15] The accused was sentenced to direct
imprisonment of 2 years and has to date almost served the sentence in
full. Despite for the 5 months it took to have the record of the
proceedings transcribed, it took a further 10 months after the first
query was sent, before the magistrate conceded that she had
misdirected herself and still without her addressing the issues
raised in the query! This reply only came
after the second query was
directed to the magistrate and without any explanation for the delay.
Undoubtedly, had the magistrate provided her reasons for conviction
on the first query she had received as she was supposed to do, then
the conviction would already have been set aside one year ago and the
accused would have been released at the same time.

[16] The manner in which the magistrate handled and responded to
the queries directed to her cannot be condoned as it is not only a
dereliction of her duties, but resulted in a travesty of justice
which renounced the accused’s fundamental rights, enshrined in the
constitution of this country. Magistrates should be mindful that
with attitudes like the magistrate in this case has displayed, they
open themselves up for civil claims against them personally.

[17] In the result it is ordered:

  1. The conviction on both counts and the sentence imposed are set

  2. The Registrar is directed to forward a copy of this judgment to the
    Chief: Lower Courts.



I concur.