REPUBLIC OF NAMIBIA

CASE NO CR 25/2010

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

NAIRENGE EDWARD

(HIGH COURT REVIEW CASE NO. 1966/09)

CORAM: VAN NIEKERK, J et SWANEPOEL, J

Delivered: 12 April 2010

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REVIEW JUDGMENT

VAN NIEKERK, J: [1] After a plea of not guilty and a trial, the accused was convicted in the magistrate’s court at Rundu on a charge of theft, read with the provisions of the Stock Theft Act, 1990 (Act 12 of 1990), as amended. The accused was committed for sentence by a regional court in terms of section 116 of the Criminal Procedure Act, 1977 (Act 51 of 1977) (“the CPA”). The learned regional magistrate has doubts whether the proceedings are in accordance with justice and is referring the matter to this Court for review in terms of section 116(3) of the CPA.

[2] The State case is that the accused stayed with his grandmother and that he sold a cow belonging to her to a third person without her permission. The accused stated from the start when he pleaded not guilty that the cow had been given to him and that he sold it. When his grandmother testified she initially said that she did not give the accused any cattle. However, under cross-examination she acknowledged that she had given the animal to the accused a long time before when it was still small, but later when they experienced problems, she told accused that they were to exchange it for one Japhet’s ox so that they could use it to plough. She received the ox from Japhet and ordered accused to take the cow to the kraal so that Japhet’s people could collect it from there, but accused never did it. She then left the village to tend her mahangu fields. While there she heard that accused had sold the cow. She denied giving accused permission to sell the cow.

[3] A person commits theft if he unlawfully and intentionally appropriates property which belongs to another. However, a person can also steal his own property if he appropriates it with the necessary intention while it is in the possession of another who has a right of possession which is stronger than the owner’s right of possession, e.g. in the case of a pledge or a ius retentionis (R v Janoo 1959 (3) SA 107 (A).

[4] I agree with the learned regional magistrate that, on the available evidence, the accused’s rights to ownership had not been extinguished at the time that his grandmother decided to exchange the cow for the ox. Even if he did not voice his opposition to the exchange and it could perhaps be said that he tacitly agreed that it should be exchanged, it seems to me that Japhet did not acquire any right in the cow before he had taken it into his possession, which never happened, as the cow was sold before then. In any event, on the available evidence it is not proved that accused had any intention to commit theft. I therefore agree with the learned regional magistrate that the accused could not have been convicted on this charge.

[5] The result is that the accused’s conviction is set aside.

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VAN NIEKERK, J

I concur.

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SWANEPOEL, J