CASE NO.: CA 08/2009

IN THE HIGH COURT OF NAMIBIA HELD

IN OSHAKATI

In the matter between:

SECILIA NDEUYA MAKANDA
APPELLANT

and

THE STATE
RESPONDENT

CORAM:
SHIVUTE, A.J et
LIEBENBERG, A.J

Heard on:
22 May 2009

Delivered on:
22 May 2009

Reasons released on:
17 June 2009

REASONS FOR JUDGMENT :

SHIVUTE, A.J:
[1] The appeal was argued before us on 22 May 2009. The Court having
heard oral arguments from both counsel, upheld the appeal and set
aside both the conviction and sentence imposed by the court a quo.

[2] In October 2007 the Appellant
stood arraigned in the Regional Court of Oshakati on one count of
Theft of a motor vehicle. It was alleged that between December 2006
and 18 April 2007 at Oshakati the Appellant did unlawfully and
intentionally steal a motor vehicle to wit a Toyota Corolla 2000
model, engine No I N Z A O74462 chassis no. 0010420 the property of
or in lawful possession and control of Jose Alberto Musita.

[3] She pleaded not guilty to the
charge. At the end of the trial the State successfully secured her
conviction. She was sentenced to 3 years imprisonment, 2 years of
which is suspended for 5 years on condition that the accused is not
convicted of theft committed during the period of suspension. She now
appeals against both conviction and sentence.

[4] Mr. Namandje argued the appeal on
behalf of the Appellant and Mr. Sibeya argued on behalf of the
Respondent.

At the commencement of the appeal the
Respondent raised points in
limine to the effect that:

1. 
   “Prosecutor’s
   opening statement; paragraphs 6-1 to 6-3 of the Appellant’s main
   heads of argument contain complaints and a criticism to the
   prosecutor’s opening statement. It was submitted that Appellant’s
   notice of appeal contained no grounds which addressed the
   prosecutor’s opening statement.

   
   

2. 
   The
   black Toyota Corolla: it was submitted that there was no ground in
   the notice of appeal on record which addressed the finding of the
   learned Magistrate that there was a first black Toyota Corolla car
   given to the Appellant which was returned to the Respondent”.

   
   

[5]
Although the two issues
raised as points in
limine
above were not expressly mentioned in the grounds of appeal, we are
of the view that they are covered by the general ground of appeal to
the effect that the trial court erred in finding that the State had
proved theft of the motor vehicle and the intention to steal it
beyond reasonable doubt.

[6]
The following grounds of
appeal were advanced on behalf of the Appellant:

AD conviction

“1.
The learned magistrate erred in finding that the State had proved
beyond a reasonable doubt:

1.1.
Theft of a motor vehicle

1.2.
The intention to steal

2.
The learned magistrate erred in finding that the state had proved
beyond a reasonable doubt that the Appellant had the requisite
intention to steal a Toyota Corolla currently bearing a registration
number N 6795 SH.

2.1.
More particularly the learned magistrate erred in finding that the
State had proved beyond a reasonable doubt that the theft of the
Toyota Corolla was committed between December 2006 and 18 April 2007.

2.2.
The learned magistrate erred in not having regard to the evidence of
Michael Joao Kondima that he personally delivered the motor vehicle
to the Appellant during 2006, and that he only reported the matter to
the Ohangwena Police Station during April 2007 after he was informed
by the person (who was never called to testify), that the Toyota
Corolla was registered in the name of the Appellant.

2.3.The
learned magistrate further erred in not having regard to the evidence
of Michael Joao Kondima that he went to lay a complaint at the police
station because he wanted the Toyota Corolla motor vehicle returned
back to him after he found the Appellant in the company of another
man at one of the service stations in Ondangwa and the Appellant
pretended that she does not know him.

3.
The learned magistrate erred in accepting the version of the State
witnesses to the effect that the Appellant was given the Toyota
Corolla motor vehicle to use and not as her sole and exclusive
property.

3.1.The
learned magistrate failed to weigh or weigh properly the probability
of the truthfulness of the evidence of the Appellant and Ndeenda
Makanda, that when Michael Joao Kondima delivered the Toyota Corolla
motor vehicle together with the documents pertaining to the purchase
and previous ownership of the said motor vehicle and informed her
that it is her car.

[7] The
learned magistrate erred in finding Michael Joao Kondima who was a
single witness, as credible despite the contradictions in his
testimony”.

[8] The Appellant also raised grounds
of appeal against sentence, but because of the conclusion we have
arrived at in this judgment, it is not necessary to deal with those
grounds.

[9] The evidence presented at the
trial, in brief, is that the investigating officer Paulus Amunyela
Avelinus received the case docket on 24 April 2007 where the
complainant reported that he had given a motor vehicle to his
girlfriend, the Appellant in this matter, to use for going to church
but when he wanted it back she refused to return the vehicle. She
gave several excuses such as that the vehicle was with the brother in
Oranjemund or that she had gone to Tsumeb.

The investigating officer confronted
the Appellant on 30 April 2007 to bring the vehicle; the Appellant
stated that the vehicle belonged to her as it was given as a gift to
her by her boyfriend, the complainant.

[10] The Appellant insisted that the
vehicle belonged to her. Warrant officer Avelinus found out that the
vehicle was registered in the name of the Appellant on 18 April 2007.
The investigating officer did not arrest the Appellant immediately
because he wanted to give her time to return the vehicle

[11] Joao Michael Kondima also known
as ‘Bobo’, a business partner of the complainant, testified that
on a Saturday he was given the vehicle in question by the complainant
to take to the Appellant so that the Appellant could use the vehicle
to go to church and that the witness would pick up the vehicle on a
Monday. He could not remember the date when he took the vehicle to
the Appellant. Joao testified that the vehicle belonged to their
business. On a Monday he went to the Appellant’s house to fetch the
car but he did not find it there. He then telephoned the complainant
that the vehicle was not there.

The situation remained like that. One
day the witness and the complainant went to the Appellant’s house,
they were driving a Land cruiser. When they arrived at the
Appellant’s house they did not find her. Later on she came driving
the motor vehicle in issue. Before she handed over the car to them
she said she was first going to pick up her sister. She drove the car
up to a turn going to Game Shopping Center and it broke down. The
witness and the complainant took the car for repair to a certain
garage in Ongwediva. The witness does not know for how long the
vehicle stayed at the garage but what he was sure of is that after it
was repaired it went back to the Appellant.

On 14 April 2007 the Appellant
telephoned the witness to come and get this “shit”
car as it was giving her problems, but when he arrived at the
Appellant’s house, she was not there. The witness enquired about
the vehicle, the Appellant told him that the vehicle was with her
brother in Tsumeb, but within a short period of time he saw the car
passing in Ondangwa. Through cross – examination he testified that
the vehicle was given to the appellant during 2006 and that when he
took the vehicle to the Appellant to go to church, that was the first
time she was ever given the vehicle. The witness testified further
that the last payment to the previous owner was done on 8 June 2006.
Through further cross – examination he said documents pertaining to
the registration of the car were kept in the vehicle itself,
following the incident when the complainant had problems with the
police at Oshivelo in connection with the car. The documents remained
in the vehicle even when it was handed over to the Appellant and when
the vehicle was taken to the garage. The witness further testified
that the complainant gave the Appellant a black Corolla to drive and
that it was returned. The witness was unable to deny whether the
vehicle in issue was given as a gift to the Appellant.

[12] Complainant Jose Alberto Musita
Morera testified to the effect that he had an intimate relationship
with the Appellant. He stayed in Oshikango and she stayed in
Oshakati. Complainant used to travel from Oshikango to Oshakati to
take the Appellant to church at the Appellant’s village at Ongenga,
because of this long distance he taught her how to drive until she
got a driver’s licence. That was when he said to her he would offer
her a car every Saturday to go to church on Sunday and he would fetch
it on Monday. He testified further that on the date his relationship
with the Appellant ended he found her with a new boyfriend and the
Appellant denied in the presence of her alleged new boyfriend that
she knew him (complainant). After she said she did not know him, he
demanded that Appellant return the car, but she did not. That is why
he happened to go to the police station at Ohangwena. (This date
happens to be 14 April 2007). Complainant further gave evidence to
the effect that he gave the vehicle in issue to the Appellant on a
certain Saturday during 2006 but he could not remember the month. He
stated furthermore that they bought a car from a certain Malakia to
assist them with their work. The car could not be registered in his
name because there was still an amount of N$18,000.00 outstanding and
he just did not have enough time to have it registered. The documents
for the car were kept in the car, even when the car was given to the
Appellant. He denied to have given her the documents.

[13] He continued to state that the
day they came to collect the car she drove it. On a Monday they were
supposed to get the car, but it developed a problem somewhere near
the traffic lights. So the car was towed from there to the garage.
The car remained in the garage for approximately 2 months because of
the parts which were not freely available here. So again after the
repair of the car, they went to Windhoek. Again Appellant asked for
the car for her to go to church. This evidence is contrary to what
Mr. Kondima said on this aspect, namely that he came to get the car
on a Monday but could not find it.

The witness testified further that the
first time the Appellant was given the car, it experienced a gearbox
problem and when on the second occasion the Appellant got the car,
she never returned it until the case was opened with the police. The
vehicle experienced problems for the first time in November 2006.
When it experienced problems, the complainant was driving the vehicle
himself. When the vehicle came out of the garage, the Appellant
needed the vehicle again and the complainant delivered it to the
Appellant himself during November 2006. The complainant on his own
version did not give a specific date to the Appellant as to when the
vehicle should be returned, contrary to the evidence of Mr. Kondima
and the opening statement of the prosecutor.

[14] Complainant denied having given
the Appellant the car in issue as a gift. He also denied that he had
given a black Toyota Corolla to the Appellant for use. However, he
does not dispute that he promised to give the Appellant a car as a
gift.

[15] For the defence, the Appellant
confirmed that she had a love relationship with the complainant and
that he had given her a car. It was a black sports car but its
documents were not in order. It was also destined for Congo
Brazaville. Complainant allegedly told the Appellant that she would
be able to register the car in her name as she was Namibian.
Appellant rejected the car and that was when she was given the Toyota
Corolla in issue. The Respondent contended that this evidence was not
put to the State witnesses. This Court does not agree with the
Respondent because it was actually put to the complainant that at one
stage he gave a black Corolla sports car to Appellant to use except
for the fact that the car was destined for Congo Brazaville; that
complainant told the Appellant that she could register the car and
that she rejected the car as its documents were not in order. (See p
158 pr 3-4 of the typed record).

[16] The Appellant further testified
that when the complainant brought the car to her he said it was a
gift; he suggested that she must take him to her parents as he was
going to marry her. The Appellant confirmed that she had been a
girlfriend to the complainant since 2005 until 2007 when she was
called by the Namibian Police and informed that she had allegedly
stolen the vehicle concerned. She informed the police that she must
be given a court date so that she could relate to the court that the
vehicle was given to her as a gift by the complainant. She stated
that she had the vehicle concerned for about a year before
allegations of theft were levelled against her. She was allegedly
given the vehicle by the complainant during 2006 as a gift. When the
Appellant obtained her driver’s licence in November 2006, she was
already in possession of the vehicle. She testified further that
during 2006 and April 2007 complainant did not ask for the return of
the car.

The Appellant testified that the
complainant told her to register the car under her name. However, she
could not register the vehicle before 18 April 2007 due to a number
of problems that had to be fixed before it could pass a road
worthiness test. She went further to say that when the vehicle was
brought by Mr.Kondima it was in March 2006 and she denied that that
could have been in November/December 2006. The Appellant testified
further that the vehicle was returned to her in August 2006 from the
garage at Ongwediva.

[17] Alma Kaunapawa Sheya a friend to
the Appellant, also gave evidence for the defence. She stated that at
the beginning of 2006 the complainant and the appellant met her and
complainant told her that he brought a car to the Appellant and
showed her the keys and the papers of the car.

[18] Deenda Makanda a sister to the
Appellant testified that she was present when the Appellant was given
the vehicle’s keys and papers by the complainant. She could however
not remember the date.

Judgment of the Court a quo

[19] The Court found that the
complainant gave a black Toyota Corolla to the Appellant. The two
defence witnesses stuck to the version that the complainant gave the
car to the Appellant during March 2006 but it was not put to the
complainant that there were witnesses to the hand over ceremony. The
court found Bobo to have been a credible witness. It also found that
it was improbable that the complainant will give the Appellant a car
as a gift and then proceed to show the car’s documents to the
Appellant’s friends and sibling. It found that Bobo went once to
collect the car and Appellant said the car was with her brother in
Tsumeb but shortly thereafter the car was seen passing. The court
found that the Appellant denied to have known the complainant in the
presence of another person. It was further the findings of the court
that the Appellant registered the car knowing that the complainant
wanted it back and further that she was a less honest individual.

[20] It was submitted on behalf of the
Appellant that the opening statement by the prosecutor that the
Appellant was only given the vehicle for two days during December
2006 was not borne out by the evidence of the complainant. These
contradictions were material and fatal.

In Sikongo Eino Siwombe vs the
State Case number. CA 23/2008,
judgment delivered on 22 September 2008 where the court stated in
reference to the matter of S
v D 1995 (1) SACR 173 (T) at 179 D – G at page 9
where it stated:-

“The
learned magistrate should have had regard to the discrepancies
between the opening address of the state prosecutor and the evidence
of the complainant. In casu the creditworthiness of the complainant
was under severe scrutiny. Such a discrepancy is one that should have
been given due weight and considered cumulatively to the rest of the
other evidential pitfalls which were so abundant in this case. In the
absence of any cogent explanation, the bold assertion by the
prosecutor that the complainant ‘herhaaldelik gesodomiseer is …en
dat dit die beskuldgde is wat hierdie handeling uitgevoer het (freely
translated: continuously sodomized … and that it was the accused
who perpetrated the act’), must be deemed to emanate from the
complainant, who was the only direct witness on this aspect of the
state’s case”.

Thus, it was submitted, given the
discrepancies between the State prosecutor’s opening statement in
terms of Section 150 and the evidence, the court a quo
in view of many other improbabilities and contradictions ought not to
have convicted the Appellant.

[21] It was further submitted that
there was a lack of analysis of evidence and there was further lack
of compelling and convincing reasons why the evidence of the
Appellant that the vehicle was given to her as a gift, was not
accepted. The correct approach in assessing the evidence of the State
and the evidence of the accused person is carefully, correctly and
clearly set out in the matter of S
v Jaffer 1988 (2) SA 84 at
page 88 – 89 where the following was stated by the court:-

“It
is not however the correct approach in a criminal case to weigh up
the State’s version, particularly where it is given by a single
witness, against the version of the accused and then to accept or
reject one or the other on the probabilities”.

[22] Mr. Namandje submitted again
that there were adequate probabilities on the record, and more so in
view of improbable evidence of the complainant, replete with
contradictions which confirm the fact that the version of the
Appellant could reasonably possibly be true that the vehicle was
given to her as a gift. There are equally good reasons to infer that
the complainant only changed his mind upon finding the Appellant with
another man. In this respect the learned magistrate clearly got the
approach wrong. There was no proper analysis of the Appellant’s
evidence as it is required. Therefore the Court should look at the
evidence afresh to come up with its own decision on facts, even if it
were to be said that there could be a serious suspicion that the
complainant could not have given the Appellant the vehicle, that is
unfortunately, not the test in criminal cases. It was therefore
submitted that the State did not, on the evidence tendered at the
trial prove beyond reasonable doubt that the Appellant stole the
vehicle in question. The reasons being that the vehicle was given
to the Appellant as a gift, as corroborated by two witnesses. The
evidence of the Appellant’s witnesses was not rejected or was not
considered. The complainant, as to whether he gave the vehicle as a
gift or not, was a single witness and his evidence ought to have been
approached with caution.

[23] On the other hand it was
submitted by counsel for the State that in the event that their point
raised in limine
was not accepted, the only attack on the opening statement of the
prosecutor by the Appellant was contained in paragraph 6.1 of their
main heads of arguments, in that the prosecutor stated that the
vehicle was given to the Appellant only for two days during December
2006, whereas this was not borne out by the evidence of the
complainant. It was pointed out that the prosecutor clearly stated
that the Appellant was given a car to use for a period of two days
and thereafter return it. Besides, the complainant himself testified
that he decided to give the Appellant the car every Saturday for her
to go to church on Sundays and that he will fetch the car on Mondays,
which according to counsel, meant that the Appellant indeed had the
use of the car for two days.

[24] We respectfully see little merit
in this argument. Surely even if it was true that complainant had
given the vehicle to the Appellant every Saturday for her to go to
church on Sundays and the car would be collected on Mondays, this
does not tally with the opening statement of the prosecutor which
said Appellant was only given the vehicle for two days.

[25] It was again submitted by the
State that the evidence must be evaluated to determine the guilt of
the offender. The State must satisfy the court, not that each
separate item of evidence is inconsistent with the innocence of the
accused but that the evidence taken as a whole is beyond reasonable
doubt inconsistent with such innocence. He referred the court to the
case of R v De
Villiers
1944 AD 493, 508 -9 and other authorities.

[26] As far as the complainant being a
single witness is concerned, Mr. Sibeya submitted that the
complainant was a single witness on whether or not he gave the car as
a gift to the Appellant. The evidence of a single witness should be
treated with caution. In S v
Sauls 1981 (3) SA 172 (A)
180 it was said that there is no rule of thumb test formula to apply
when it comes to the consideration of the credibility of the single
witness. The trial court should weigh the evidence of the single
witness and should consider its merits and demerits and having done
so, should decide whether it is satisfied that the truth has been
told despite short comings or defects or contradictions. Furthermore,
citing the case of S v
Webber 1971 (3) SA 754 (A)
he submitted that evidence ought not necessarily be rejected because
the single witness happens to have an interest or bias to the
accused, as the correct approach is to assess the intensity of the
bias and to determine the importance thereof in the light of the
evidence as a whole.

[27] As to when a person could be
viewed as a single witness, if some corroboration is to be found from
evidence of other witnesses, a witness on an incident that only he
testifies, can no longer be regarded as a single witness. It was
submitted that taking into account the evidence in its totality,
complainant was not a single witness. S
v Snyman 1968 (2) SA 582
(A) 586-7.

We are of the view that what counsel
for the Respondent submitted is trite law. However in this case there
has not been corroboration as to whether the car was not given as a
gift by the complainant to the Appellant because Mr. Kondima was
unable to deny whether the vehicle was given as a gift or not. The
complainant as far as the issue of giving the car as a gift or not is
concerned, could be regarded as a single witness.

[28] It was further argued on behalf
of the State that failure to cross- examine or dispute the evidence
of State witnesses on the issues mentioned above in the summary of
evidence leads to a conclusion that such is admitted as it is trite
that undisputed evidence shall be deemed to be accepted by the other
party. Equally it was submitted that failure to put one’s case to
the witness to reply thereto is an indication of fabrication. Several
authorities were quoted in this regard.

[29] As far as credibility was
concerned it was submitted that credibility findings on Bobo and the
Appellant in particular should not be interfered with as there were
no convincing reasons by the Appellant as to why such findings should
be disregarded. It was further submitted that in criminal cases it is
for the State to prove the guilt of an accused beyond a reasonable
doubt, and not for the accused to prove his innocence; proof beyond a
reasonable doubt does not mean proof beyond all the doubt; or that
the prosecution should eliminate all hypothesis which are
inconsistent with the accused’s guilt or which may be consistent
with his innocence.

It was again the submission of the
State that the Appellant’s version that she was given the car as a
gift could not be said to be reasonable possibly true. This was so
especially when one had regard to the following: that the car in
question was bought by the complainant together with his business
partner for the business or work purposes; that it was given to the
Appellant to use to go to church; that its documents were kept in the
car; that when the Appellant was asked to return it back to the owner
she gave several excuses; that the material aspects of the State
witnesses’ testimony were not disputed; and that the material part
of the Appellant’s evidence and that of her witnesses, were not put
to the State witnesses. It was further submitted that the Appellant
was correctly convicted and that the appeal against conviction should
be dismissed.

[30] The approach of a court to
determine in a criminal trial whether an accused should be convicted
has been stated in R v
Difford AD 370 at 373:-

“No
onus rests on the accused to convince the court of the truth of any
explanation he gives if he gives an explanation even if that
explanation is improbable the court is not entitled to convict unless
it is satisfied, not only that the explanation is improbable, but
that beyond any reasonable doubt it is false. If there is any
reasonable possibility of his explanation being true, then he is
entitled to his acquittal”.

[31] It is also trite law that a court
of appeal will be slow to interfere with findings of fact and
credibility of a trial court, unless it finds the reasons by the
trial court’s factual findings unsatisfactory, unmistakably and no
proper advantage taken from having seen or heard the witnesses. See S
v Hepute 2001 NR 242 (HC)
at 243.

[32] In this case it was the evidence
of the State that the car in question was bought for business
purposes. This evidence could not have been accepted because there is
evidence from the Appellant that she kept the vehicle in issue for
about a year. There is also no proof before the court a quo
that the car belonged to the business as it was bought by the
complainant and not in the name of the business.

The magistrate did not advance any
reasons for having concluded that the complainant had previously
given a black Toyota Corolla to the Appellant as a gift, despite the
complainant’s evidence to the contrary. The Court a quo
could have only made the findings on the basis of the Appellant’s
evidence but then in the same breath rejected the evidence of the
Appellant when she said she was given the vehicle in issue which was
allegedly stolen. On the basis of this misdirection this Court is at
large to look at the evidence afresh.

[33] The complainant testified that:
“The
day we came for the car, as I said I gave the car to her on Saturday,
Sunday she drove the car. Monday we were supposed to get the car,
this car stopped or it was having a problem somewhere near traffic
lights or robots as they were called somewhere there, so the car was
pulled from there and it was taken to the garage. The car remained in
the garage for may be 2 months or 2 weeks because of the parts which
were not frequently available here. So again after the repair of the
car, we went to Windhoek again.
She
asked for the car for her to go to church”.
This evidence contradicted the evidence of Mr. Kondima that he came
to get the car on a Monday but could not find it. The complainant
testified that the first time the Appellant was given the car, the
car experienced a gearbox problem and when on the second occasion,
the Appellant got the car, she never returned it until the case was
opened with the police. The complainant again testified that when the
vehicle experienced gearbox problems for the first time in November
2006, the complainant was driving the vehicle himself. This evidence
is contradicting the evidence of Mr. Kondima when he said the
Appellant was driving the vehicle.

Although Mr. Kondima and the
prosecutor in his opening statement said the vehicle was given to the
Appellant for two days only, complainant testified that when the
vehicle came out of the garage, the Appellant needed it again and the
complainant delivered the vehicle himself to the Appellant during
November 2006. According to his own version he did not indicate the
date to the Appellant as to when the vehicle should be returned.
These are some of the contradictions which the court a quo
did not consider; although
not all of them are material.

The State alleged that the complainant
repeatedly asked for the return of the car. This could not be
evidence of theft because when the car broke down it was returned to
the Appellant after it was repaired. There has been no serious effort
on the part of the complainant to demand for the car to be handed
back up to the stage when the relationship between complainant and
the Appellant broke up.

[34] The court a quo
had misdirected itself by making a finding that the complainant made
a good impression as “a man” and not as a witness. It also
misdirected itself by finding that the complainant was not an “honest
individual”. The court a quo
thus, did not assess the Appellant as a witness
but as an individual,
which amounts to a serious misdirection.

[35] The court a quo
again misdirected itself by finding that it was improbable that
complainant would give the Appellant the car as a gift and went on to
show the motor vehicle documents to the accused’s friend and
sibling. This might be improbable but the test is, whether there is a
reasonable possibility that the Appellant’s evidence may be true.
In applying that test one must also remember that the court does not
have to believe her story still less has it to believe it in all its
details. It is sufficient if it thinks there is a reasonable
possibility that it may be substantially true. R
v M 1946 AD 1023 at 1027.

[36] It was further decided in S
v Kubeka 1982 (1) SA 534
(w) at 537 FH, where Slomowitz A.J said in this regard to the
accused’s story:-

“Whether
I subjectively disbelieve him, is however, not the test. I need not
even reject the state case in order to acquit him. I am bound to
acquit him if there exists a reasonable possibility that his evidence
may be true. Such is the nature of the onus on the state”.

Again the court rejected the evidence
of the defence and accepted the evidence of the State without giving
cogent reasons why the evidence of the defence was rejected. It is
the opinion of this Court that the court a quo
failed to analyze the evidence before him and evaluate it to
determine whether the charge has been proved beyond reasonable doubt.

[37] The court a quo
has failed to determine at what point the vehicle in issue was
stolen. Was it when the vehicle was registered? Was it when the
Appellant allegedly refused to return it by demand?

[38] If one looks at the evidence, the
vehicle in question was given to the Appellant again after it came
from the garage. Complainant never asked for the vehicle to be
returned, he only demanded for the vehicle to be returned when he
found the Appellant with the alleged new boyfriend on 14 April 2007
and the Appellant allegedly denied that she knew him. To quote his
own words he stated: “Then
after she said she does not know me in that way, I said fine, bring
back the car, but she did not! That is why I happened to go to the
police station in Ohangwena”. If
one analyzes what the complainant said above, it becomes clear that
the vehicle was only reported stolen on 14 April 2007 when the
Appellant was in the company of the alleged new boyfriend and
allegedly denied to have known the complainant and after she failed
to return it on demand.

[39] One could conclude that the
alleged theft
only occurred after the relationship became sour, that is when the
complainant demanded to have the car back. The complainant’s
evidence as to whether he gave the vehicle as a gift or not, was
evidence of a single witness and his evidence ought to have been
approached with caution.

This Court is of the opinion that the
court a quo
did not treat the complainant’s evidence with caution given the
fact that there has never been proper analysis, assessment and
evaluation of the facts. The court a quo
did not consider the evidence of the other defence witnesses and
rejected the evidence of the Appellant without giving cogent reasons.

For the foregoing reasons this Court
is inclined to find that theft has not been proved beyond a
reasonable doubt and that the Appellant’s evidence in the
circumstances, could reasonably possibly be true.

[40] There is a reasonable possibility
that the Appellant was given the car together with its documents as a
gift by the complainant. The Appellant by registering the vehicle in
her name in the circumstances where the vehicle might have been given
as a gift, does not amount to theft. She may well have registered the
vehicle in her name in order to strengthen her ownership of the
vehicle.

[41] It was for these reasons that we
allowed the appeal and made the order referred to above.

__________________________

SHIVUTE, A.J.

I agree

__________________________

LIEBENBERG, A.J

ON
BEHALF OF THE APPELLANT Mr.
Namandje.

Instructed
by: Sisa
Namandje & Co Inc.

ON
BEHALF OF RESPONDENT Adv.
Sibeya

Instructed
by:
The
Prosecutor - General.