SPECIAL
INTEREST CASE NO. CA 209/2007

IN THE HIGH COURT
OF NAMIBIA

In the matter between:

LEHTO
MUNGANDJERA APPELLANT

and

THE
STATE RESPONDENT

CORAM: HOFF,
J. et
MARCUS, AJ.

Heard on: 2009.02.20

Delivered on: 2009.02.20 (Ex
tempore)

___________________________________________________________________________

APPEAL
JUDGMENT:

HOFF, J.: [1] The
appellant was convicted in the Outapi Magistrate’s Court of the
theft of stock namely one goat valued at N$250.00 in contravention of
the provisions of Section 11 (1)(a) of the Stock Theft Act, Act 12 of
1990. The matter was thereafter referred to the Regional Court
Magistrate who based on the fact that the appellant was a second
offender sentenced the appellant to a period of thirty (30) years
imprisonment of which fifteen (15) years were suspended for a period
of five (5) years on condition that the appellant is not convicted of
the crime of theft read with the provisions of Act 12 of 1990
committed during the period of suspension. The appellant
subsequently appealed against the conviction as well as the sentence.

[2] At the inception of the
proceedings before this Court Mr Rukoro who appears on behalf of the
appellant amicus
curiae, indicated to
the Court that the appeal against conviction has been abandoned. Mr
Rukoro submitted that this Court should interfere on appeal with the
sentence imposed by the Magistrate inter
alia because the
Regional Court Magistrate did not explain the provisions of Section
14 of the Stock Theft Act, Act 12 of 1990 to the appellant and that
the Court also did not indicate whether or not the Court found
compelling and substantial circumstances prior to sentencing the
appellant. This Court has in the unreported review judgment in the
matter between the State
v Victor Mbishi Mishe
as per Liebenberg AJ, (Damaseb JP concurring) set out some guidelines
to follow after an accused has been convicted of stock theft, and I
will again refer to those guidelines.

“1. At least after the
accused has been convicted, he or she should be informed which
provisions of the Act are applicable for purposes of a specific
minimum prescribed sentence.

2. 
   At least the following
   should be explained to the accused person:

   
   

2.1 that unless the Court
finds that substantial and compelling circumstances exist which would
justify the imposition of a lesser sentence the Court will have to
impose at least a period of imprisonment as prescribed by the
Legislature.

2.2 it must be explained to
the accused that if the Court is satisfied that the accused
particular circumstances considered with all the relevant factors
rendered a minimum prescribed sentence unjust the Court will be
entitled to impose a lesser sentence.

2.3 that the Court will take
into consideration all the facts and factors the accused wishes to
advance in order for the Court to come to a just conclusion. As
usual it must be pointed out that the accused may make statements
from the dock, or that he or she may testify under oath in which
instance the State will be entitled to cross-examine. Also that more
weight would be attached to evidence given under oath and that the
accused besides himself testifying may call witnesses to testify on
his behalf.”

[3] I also wish to refer to a
passage in the review case the State
v Freddy Kamukaeb and Gerhard Kamukaeb
review case no. 593/06 where this Court per van Niekerk J said the
following on page 2 of that record:

“The Learned Regional
Magistrate points out that he omitted to explain the provisions of
Section 14 of Act 12 of 1990, as amended, to the accused. More
particularly he says he did not explain the fact that the accused
were facing a minimum sentence of twenty years without the option of
a fine, and that if substantial and compelling circumstances exist
which justified imposition of a lesser sentence the Court may impose
a lesser sentence. In his view the accused did not have a fair trial
as far as sentence is concerned and he requests this Court to set
aside the sentence he imposed in order for him to explain the
relevant provisions properly to the accused so that they might avail
himself opportunity to place such circumstances before him. I agree
that this should be done”.

[4] It appears from the record
of this appeal that the Magistrate in the Regional Court did not
explain to the accused the provisions of Section 14 of the Stock
Theft Act, and although it appears from the record that the
magistrate explained to the accused
“compelling and substantial principle”, this
Court sitting as a Court of Appeal, is in the dark as to exactly what
has been explained to the appellant. There is also a second reason
why the sentence imposed by the Regional Court Magistrate should be
set aside, and that is for the reason that the sentence imposed is
ultra vires.

[5] As I have indicated earlier
the Regional Court Magistrate suspended part of the sentence imposed
by him. Section 14 (4) of the Stock Theft Act, Act 12 of 1990 as
amended reads as follows:

“The operation of a
sentence imposed in terms of this Section in respect of a second or
subsequent conviction of an offence referred to in Section 11
(1)(a)(b)(c) or (d) shall not be suspended as contemplated in Section
297 (4) of the Criminal Procedure Act, if such person was at the time
of the commission of any offence 18 years of age or older.”

[6] The appellant is a second
offender and older than 18 years. Thus the magistrate was not
entitled to suspend any part of that sentence. The conviction is
confirmed. The sentence imposed by the Regional Court magistrate is
set aside. The matter is referred back to the regional court, and
the magistrate is required to comply with the guidelines set out in
this judgment, and thereafter sentence the appellant afresh. The
appellant remains in custody.

__________

HOFF, J

I agree

_______________

MARCUS, AJ.

ON BEHALF OF THE
APPELLANT MR RUKORO

Instructed by:
LORENTZ ANGULA INC.

ON BEHALF Of THE
RESPONDENT ADV. KUUTONDOKWA

Instructed by: OFFICE OF
THE PROSECUTOR-GENERAL