CASE NO.: CR 22/2010

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

IMMANUEL NGHITOTELWA AND ANOTHER

(HIGH COURT REVIEW CASE NO.: 52/2010)

CORAM: LIEBENBERG, J. et
TOMMASI, J.

Delivered on: October 06, 2010.

REVIEW JUDGMENT – SECTION 116 (3) ACT 51 OF 1977

LIEBENBERG, J.: [1] The three accused were
arraigned in the Magistrate’s Court, Eenhana on a charge of
stock theft, read with the provisions of the Stock Theft Act, 1990
(Act No. 12 of 1990), as amended. The accused pleaded not guilty and
conducted their own defence. At the end of the State case accused
no. 2 was discharged in terms of s 174 of the Criminal Procedure Act,
1977 (Act 51 of 1977) (“the Act”). Accused no’s 1
and 3 were convicted whereafter they were committed for sentence by
the Regional Court in terms of s 116 of the Act.

[2] When the case came before the Regional Court it was discovered
that the record of the proceedings in the Magistrate’s Court
could not be transcribed, as the envelope containing the tape
recordings went missing when sent to Windhoek for transcription.
Fortunately, the notes kept by the presiding magistrate were still
available; from which a fairly complete record could be
reconstructed. The reconstructed record is the notes kept by the
magistrate in summary form. This record was then handed to the
accused persons, who reduced their submissions to writing and which
form part of the record of the proceedings. No objections were
raised by either of the accused against the correctness of the
reconstructed record, and each merely amplified his defence.

[3] I pause here to observe that in this case it would have
sufficed to merely substitute the missing record with the
magistrate’s notes, without summarising the evidence as the
magistrate did. In some respects the summary does not correspond
with what had been recorded in the notes; to which I shall return
later herein. For purposes of reviewing the trial proceedings, I
consider the magistrate’s notes to be sufficient to substitute
the missing record of proceedings; as these appear to be complete and
prima facie (correctly) reflect the evidence presented at the
trial. Thus, where there is a difference between the notes and the
magistrate’s summary (the latter constituting a “reconstructed
record”), preference will be given to the notes.

[4] The Regional Court magistrate, after perusing the reconstructed
record and for the reasons set out in his accompanying letter, was
not satisfied that the trial proceedings were in accordance with
justice, and had therefore sent the matter on review in terms of s
116 (3) of the Act. He is of the view that on the evidence, the
State did not prove that one heifer, which the accused allegedly
stole, did not belong to accused no.3 as he claims; that
accused no.3 is not linked to the alleged theft of one ox; that from
the record it is not clear whether the accused were convicted of
stealing the heifer and the ox or only the heifer; and, that
the right to cross-examine was not explained to the unrepresented
accused, resulting in an irregularity.

[5] The observations made by the learned magistrate are factually
correct.

[6] It is common cause that the complainant, Martin Kalondo, who is
also a headman, had stray cattle among his own herd for some years.
Prior to that, some cattle belonging to accused no.3 went missing,
amongst them, a heifer. Whilst in search of his cattle accused no.3
came to the complainant and after giving a description of his missing
heifer, the complainant handed him a heifer in calf, matching the
description. Accused no.3 then requested accused no.1 to drive the
heifer to the cattle post of one Mudjanima whilst he continued
searching for the rest of his missing cattle. Accused no.1 instead
sold the heifer to Salmon Nghiishililwa without the knowledge or
permission of accused no.3, who only heard about it at the time of
his arrest.

[7] According to Thomas Weyulu accused no.1 brought one ox and a
cow with a calf into his kraal during July 2007 and which led to his
arrest. I pause here to remark that in the reconstructed record the
magistrate confused the facts by stating that it was accused no.3 who
had brought the cattle into Weyulu’s kraal and committed a
misdirection by finding that accused no.3 did not challenge that
evidence. According to the witness accused no.1 admitted to the
police that he had taken (stolen) an ox and a heifer after accused
no.2 had told him that these were stray cattle; that he had sold the
heifer and that the ox was in the field of one Ndafelani. These
animals turned out to be stray animals kept by headman Kalondo; and
the heifer, being the same one collected by accused no.3 earlier.
There is no evidence explaining how the ox ended up with accused no.1
and therefore no evidence linking accused no.3 to the alleged theft
of an ox. Accused no.1 denied his involvement in stealing the ox.

[8] Regarding the charge on which both accused stand convicted, the
record is ambiguous and contradicting. I have earlier alluded to the
fact that the reconstructed record, in some respects, differs from
the handwritten notes of the magistrate, particularly where it refers
to the charge on which the accused were convicted. For example, the
following appears at p 27 of the handwritten notes reflecting the
court’s ex tempore judgment:

“Ct: The state prove
the allegations against both accused – theft
of one heifer.
Judgment accused 1 and 3 guilty as
charged.”
(My emphasis)

On the charge sheet it was indicated that accused no’s 1 and 3
were “guilty as charged”; whilst the following
appears in the summary (the reconstructed record) at p 6:

“The court is
satisfied that the state prove that accused 1-3 did steal the cattle
in issued from Mr. Kalondo. Accused 1-3 are guilty of the theft of
one heifer, one ox valid N$6500-00.”
(sic)

[9] The accused were charged with theft of “2 cattles i.e.
1 cow and 1 ox valued at N$6500-00.” (sic) The ox in
question was also a stray animal which was among the cattle of
Kalondo, but which on its own, had earlier joined the cattle of one
Kombanda Jason. The witness Kalondo did not explain when and how
this came to his attention and if he was responsible (as headman) to
take care of stray cattle found in the area; and why he failed to
bring the said ox back to his place when he realised that it had
wandered off to another herd? Be that as it may, there is no
evidence that links accused no.3 with the alleged stolen ox; whilst
there is some doubt as to the identification of an ox later found at
Weyulu’s place as being the same one allegedly stolen from
Kalondo. That would be consistent with the court’s finding in
its ex tempore judgment that the accused are guilty of theft
of one heifer (only). The judgment in the summarised
(reconstructed) version does not reflect this fact and tends to show
that both accused were convicted of theft of one heifer and an ox.
As stated, precedence must be given to the original handwritten
notes; according to which both the accused were only convicted
of theft of the heifer, despite the record reading “as
charged”.

[10] On the evidence adduced in the court a quo the State
did not prove that the heifer, sold by accused no.1, was stolen. On
the contrary, it was shown to have been the property of accused no.3,
which he retrieved from headman Kalondo’s kraal. Thus, no
crime was committed and the accused could not have been convicted of
theft of the heifer. The trial court clearly misdirected itself in
its evaluation of the evidence and the conviction of both accused
cannot be permitted to stand.

[11] In the result, the Court makes the following order:

1. 
   The convictions of accused no’s 1 and 3 are hereby set aside.

   
   

2. 
   The matter is remitted to the Regional Court with the direction to
   discharge the accused persons.

   
   

__________________________

LIEBENBERG, J

I concur.

__________________________

TOMMASI, J