Court name
High Court
Case number
CRIMINAL 102 of 2009

S v Tjipura (CRIMINAL 102 of 2009) [2010] NAHC 111 (28 September 2010);

Media neutral citation
[2010] NAHC 111

CASE NO. CR 102/09

Not Important


In the matter






DELIVERED: 28 September 2010



[1] This matter came before me on
special review.

[2] The accused was charged and
convicted on two counts of stock theft (Act 12 of 1990 as amended by
Act 19 of 2004) in the magistrate’s court of Gobabis.

[3] In respect of count 1, the
allegations were that he stole three cows valued at N$9000-00 the
property or in the lawful possession of Nicolaas Tjikutu.

[4] In respect of count 2 it is
alleged that he stole five heifers valued at N$12 000-00 the property
or in the lawful possession of Stephanus Kamuhinandira.

[5] The matter was transferred to the
regional court for purposes of sentencing in terms of section
116(1)(a) of Act 51 of 1977.

[6] The regional court magistrate
having perused the record, was not satisfied that the proceedings in
the court a quo were in accordance with justice and declined
to sentence the accused and referred the matter for special review.

[7] In the letter annexed to the
record, he succinctly sets out the reasons why the proceedings were
not in accordance with justice.

[8] The letter states:

"Accused was convicted of two
counts of theft of stock taking into consideration The provisions of
the stock theft Act (Act 12 of 1990).

The case was transferred to the
Regional court in terms of Section 116(1)(a) of Act 51 of 1977 for
sentence purposes.

This court is not satisfy that the
proceedings are in accordance with Justice and is therefore not in a
position to sentence accused.

The allegations in count 1 are that
accused stole 3 cows the property or in the lawful possession of
Stephanus Kamuhinandina.

Niklaas Tjikukutu testified that he
identified only one of the missing cattle at the place of witness
Anton Cleff Tjizake. Stephanus Kamuhinandira testified that he
identified three of the missing cattle at the place of witness Anton
Cleff Tjizake.

Witness Anton Cleff Tjizake
confirmed that evidence and testified that he received these cattle
from accused 1. The evidence of witness Anton confirmed by the
evidence of witness Nicklaus Mbango were direct evidence implicating
accused 1 of being in possession of four cattle one of witness
Niklaas Tjikukutu and three of witness Stephanus Kamuhinandira.

On record is (sic) no evidence
proving that accused also took the other cattle as indicated on the
annexure to the charge sheet.

The magistrate however convicted
accused as charged with the result that accused was convicted of
theft of three cows on count 1 and 5 heifers on count 2.

The magistrate probably drew the
inference from accused possession of four cattle and he also stole
the rest of the cattle. Indicated on the annexure to the charge sheet
which was not the only inference to be drawn from the proven facts.

In Blom 1939 AC 188 it was
stated that the inference to be drawn must be consistent with all the
proven facts.

The proved facts should be such
that they exclude every reasonable inference from them save the one
sought to be drawn.

In S v Mseleku 2006 (2) SACR 574
the court stated that a reasonable inference can only be
drawn from proved facts not from facts based on suspicion.

Accused should have been convicted
of theft of only one cow in respect of count 1 and three heifers in
respect of count 2.

The record is forwarded to your
office in terms of Section 116(3)(a) of Act 51/77.

[9] Having perused the record, I fully
agree with the magistrate and the conviction is set aside and
substituted with the following:

  1. On count 1, the accused is convicted
    of theft of one cow to the value of N$ 2 000,00;

  2. On count 2, the accused is convicted
    of theft of three cows valued at N$ 9 000,00;

  3. The matter is referred back to the
    Regional Court for sentencing.



I agree