“Special
Interest”

CASE
NO.: CA 113/2009

IN THE HIGH COURT OF NAMIBIA

HELD AT
OSHAKATI

In the matter between:

NAURASANA UNDARI
APPELLANT

and

THE STATE
RESPONDENT

CORAM:
LIEBENBERG, J et
TOMMASI, J.

Heard on: 30.07.2010

Delivered on:
12.08.2010

JUDGMENT

LIEBENBERG, J.:
[1] The appellant appeared in magistrate’s court Opuwo on
a single charge of stock theft, read with the provisions of the Stock
Theft Act, 1990 (Act 12 of 1990) as amended. He pleaded guilty to
having stolen one head of cattle and was subsequently convicted;
whereafter the accused was committed for sentence in terms of s 114
(1) of the Criminal Procedure Act, 1977 (“the Act”) by
the Regional court in terms of s 114 (3). The proceedings in the
Regional court commenced with the appellant giving evidence in
mitigation; however, the court found no substantial and compelling
circumstances and imposed the prescribed minimum sentence of twenty
years imprisonment of which five years were suspended for a period of
five years on condition of good behaviour.

[2] On 7 January 2010 the appellant filed a
Notice of Amendment of Grounds of Appeal whereby he amended the
grounds of appeal by extending the appeal to also include appellant’s
appeal against conviction; and adding a further ground to the appeal
against sentence. The appeal thus lies against both conviction and
sentence.

[4] Mr. Tjombe
appeared amicus curiae
for the appellant and the Court appreciates his assistance in this
regard. Mr. Wamambo appeared for the respondent.

CONDONATION

[5] Although the
appellant was sentenced on the 2^nd
of October 2007, his Notice of Appeal and “Notice of
Condonation” dated 25 November 2007 were only lodged with the
clerk of the criminal court Opuwo, on 17 December 2007, thus out of
time. As a result thereof the appellant on 14 January 2010 filed a
Notice of Application for Condonation of Late Filing of Appeal,
supported by an affidavit in which the appellant explains the delay.
The reasons advanced are, that from the outset he intended
prosecuting an appeal against conviction and sentence but did not
know how to go about it and was unaware that it involved time limits.
It was only after he was transferred to Oluno Rehabilitation Centre
that he heard from fellow inmates about the procedure to be followed
and what is required from an appellant who wishes to lodge an appeal.

[6] The State opposes
the application contending that appellant failed to show good cause
why he failed to comply with the Rules of Court; that there are no
reasonable prospects of success on appeal; and therefore, the matter
should be struck from the roll.

[7] It is trite law
that the Court in terms of s 309 (2) of the Act may extend the period
within which an appellant should have filed a notice of appeal and
whereas such extension is an indulgence from the Court, it will only
be granted on good cause shown for the non-compliance of the rules;
and where the appeal enjoys reasonable prospects of success. In
order to constitute “good cause” the appellant has to
advance reasons which the Court considers sufficient to justify the
granting of the indulgence. Where the appellant is a lay person, he
or she is not entitled to lenient or special treatment merely for the
sake of being an unsophisticated or illiterate person; justifying the
non-compliance with the Rules of Court. It has been said on numerous
occasions by this Court that wilful disregard for the rules by
laypersons in bringing their applications will not be condoned for
the mere reason of them being laymen. In every case the Court has to
consider the circumstances – including the fact that the lay
appellant was unrepresented - and in the end decide whether the
explanation advanced by the appellant amounts to “good cause”
shown.

[8] After the
appellant was sentenced in the present case, the presiding magistrate
explained to the appellant that he had the right to appeal against
“the decision of this court” by noting an appeal with the
clerk of the court within fourteen days. Appellant thereafter
confirmed that he understood what had been explained to him and that
nothing further had to be explained.

[9] Appellant in his application did not aver
that his right to appeal was not
explained to him but contended that he was not informed how to go
about filing it. This is not true and certainly casts some doubt on
his credibility as regards his explanation that he only
learned about it after he had started serving his sentence at Oluno
Rehabilitation Centre. From the explanation given at the end of
proceedings, it is clear that the appellant already on the 2^nd
of October 2007 knew
that he could appeal the matter by lodging it with the clerk of the
court within a period of fourteen days. That being the only
explanation advanced by the appellant explaining the delay, I am in
the circumstances unable to find that he has shown good cause,
justifying his non-compliance with the rules. The fact that the
respondent suffers no prejudice as contended by the appellant does
not change his position. Notwithstanding, this Court, in its
consideration of the appeal, realised that, in our view, and for the
reasons set out later herein, a procedural irregularity was committed
at the stage of sentencing, impacting on those (sentencing)
proceedings. In the circumstances, the Court condones appellant’s
non-compliance with the rules and the application is accordingly
granted.

CONVICTION

[10] The only ground of appeal against
conviction as set out in the appellant’s amended notice is,
that the (district court) magistrate erred by convicting the
appellant (on his plea of guilty), by accepting the value of the
stolen stock as being N$1 200-00 without any evidence presented to
the court, supporting such finding.

[11] The record of the proceedings, pertaining
to the value of the stolen stock, reflects the following as regards
the s 112 (1)(b) questioning:

“Q:
The value of the beast given as N$3500 do you agree with that?

A: I
disagree with that, I believe value was N$1200-00.

PP: I
have no problems with that, the state will accept the value of N$1200
and

that’s
what sold it for.” (sic)

Appellant admitted that he unlawfully took one
cow, belonging to his sister, to Muramba where he sold it. From the
prosecutor’s remark it would appear that the cow (one neat) was
sold for N$1 200-00, which value the State accepted as being that of
the stolen animal. The trial court obviously must have relied on the
same value when it committed the accused in terms of s 114 (1) for
sentence by the Regional court.

[10] In support of the argument advanced by Mr.
Tjombe, he
relied on S v Guim and Another 2008
(1) NR 305 (HC) where this Court as per Hinrichsen, AJ said:

“It
is immediately evident that as far as sentencing under the Act is
concerned the

value
of the stock in question is of cardinal importance.”
(p 2)

Furthermore at p 3:

“It
cannot be stressed enough that it is the court’s duty to
highlight the issue of the value of the stock and to instruct the
accused accordingly. It is more over the duty of the prosecution to
lead proper evidence of the stock value and to afford the accused the
opportunity to consider this issue properly. This is crucial.”

I am in respectful agreement with
these remarks which conform with what I have earlier stated in The
State v Victor Mbishi Mbise
(unreported) Case No. 101/2006 delivered on 14.11.2006 at p 5 [par
12]:

“This
clearly illustrates the duty of presiding officers to assist an
undefended accused to place on record as many facts as possible which
in turn will assist the sentencing officer to impose a well-balanced
sentence that complies with all the well-known criteria set out in S
v Tjiho
1991 NR 261 (HC) at 364I-365B.”

[12]
As far as the determination of the
value of the stolen stock is concerned in the Guim
case (supra), the “alleged value” of the stock was placed
before the court by the prosecutor during his submissions on
sentence, to which Hinrichsen AJ remarked at page 4:

“The
accused cannot plead to inadmissible evidence. The accused can
therefore not
be sentenced. The accused can thus also not be convicted since they
cannot be sentenced.”
(emphasis provided)

The facts in the Guim
case differ from the present facts in that it was not the prosecutor
who averred that the value of the stolen stock was N$1 200-00, but
the appellant himself. It therefore could not be seen to be
“inadmissible hearsay evidence” as was contended by Mr.
Tjombe.
In view of the appellant having been unrepresented, the question the
trial court had to ask itself was rather whether the admission, as
regards the value of the stock in question, was within the
appellant’s knowledge (S v Mauwa
1986 (4) SA 818 (SWA)). In the present circumstances it seems to me
that, although the appellant was no expert on the evaluation of
livestock, he clearly considered the amount he received when selling
the animal (N$1 200-00) as the reasonable market value thereof, which
the prosecution simply accepted.

[13] However, I find
myself in respectful disagreement with the view held by Hinrichsen AJ
in Guim,
that the accused in circumstances where he did not admit the value of
the stolen stock during the s 112 (1)(b) questioning, could not
plead;
neither be convicted nor
sentenced;
and I say that for the following reasons:

The value of goods or livestock stolen
is not an element
of theft, therefore it is not required during the court’s s 112
(1)(b) questioning that the accused has to admit
the value of the stolen goods before the court could convict on the
accused’s plea of guilty. See S v
Kauleefelwa 2006 (1) NR 102 (HC) where
Maritz, J (as he then was) said that “theft
of livestock is not a substantive crime existing in common or
statutory law independently of the common-law crime of theft. It is
simply a manifestation thereof.”(103E-F)

And at 104E-F:

“By mentioning the
estimated value of the stock in the indictment, summons or charge,
the prosecution does not purport to elevate it to the status of an
element of the crime. The State does not thereby assume the duty to
prove it beyond reasonable doubt in order to secure a conviction. It
is simply recorded to alert the court to the degree of seriousness
with which the commission of the theft falls to be considered…”

The essential elements
of the theft of stock are the same as theft under common-law and
these are (i) appropriation/contrectatio
(ii) unlawful (iii) intent to steal (iv) property capable of being
stolen and where the accused admits these elements of theft (of
stock) for which he stands charged, then he may be convicted
accordingly on his plea of guilty; without the value of the livestock
in question being admitted or denied by the accused during the
court’s questioning. Under common-law the value of the stolen
goods would however, become relevant when the court considers
sentence
and would normally be an aggravating factor impacting on the sentence
when it involves theft of goods with a high value. The same would
apply to theft of livestock for which the Legislature has laid down
prescribed minimum sentences under the Stock Theft Act, No. 12 of
1990, as amended.

[14] From the preceding paragraph it then seems
clear that the trial court in the present instance did not commit an
irregularity by convicting the appellant on his plea of guilty
without the value of the neat being admitted by him during the s 112
(1)(b) questioning. The value thereof could subsequently be proved
in terms of s 112 (3), which through s 114 (4) of the Act finds
application. This much was conceded by Mr. Tjombe.

[15] I pause here to make some general comments
as regards the transfer of the proceedings to the Regional Court for
sentence. With the substitution of s 14 of the Stock Theft Act No.
12 of 1990 by the Stock Theft Amendment Act No. 19 of 2004, the
Legislature enacted prescribed minimum sentences which, pending on
the value
of the stock in question, must be imposed unless there are
substantial and compelling circumstances present, justifying a lesser
sentence of imprisonment. Section 14 (1) of Act 12 of 1990 in
peremptory terms states:

“Any
person who is convicted of an offence referred to in section 11
(1)(a), (b), (c) or

(d) that relates
to stock other than poultry –

1. 
   of which the value –

   
   

1. 
   is less than N$500, shall
   be liable in the case of a first conviction, to imprisonment for a
   period not less than two years without the option of a fine;

   
   

2. 
   is
   N$500 or more, shall be liable in the case of a first conviction, to
   imprisonment for a period not less than twenty years without the
   option of a fine;

   
   

2. 
   shall be liable in the case
   of a second or subsequent conviction, ….”

   
   

Because the prescribed minimum sentence of twenty
years exceeds the sentencing jurisdiction of the magistrate’s
court (N$20 000-00 or five years imprisonment or both), the accused
is committed for sentence by the Regional Court in terms of s 114 (1)
and s 116 (1) of the Act. It is therefore only in cases involving
stock valued at less
than N$500-00 that the magistrate’s court has sentencing
jurisdiction of up to five years.

[16] From the above quoted penalty clause it is
evident that the referral of the accused to the Regional Court for
sentence, depends solely
on the value of the stock for which the accused stands convicted. I
have earlier alluded to the fact that the value of the stock is not
required for a conviction on theft, which raises the question, as to
which court then has jurisdiction over the matter as regards sentence
where the value of the stock has not yet been determined? And, where
the value has not been determined, on which facts does the
magistrate’s court rely in forming the opinion that the offence
is of such gravity that it merits punishment in excess of the
jurisdiction of that court in cases involving livestock? The answer
to both questions obviously lies in the penalty clause (s 14). It
seems to me that the magistrate’s court would only be entitled
to commit an accused for sentence by the Regional Court after
the value of the stock had been determined;
either by means of an unequivocal admission by the accused or by
presenting evidence to that effect. Judging from review and appeal
cases coming before this Court, it would appear that in many cases
the estimated
value of
the stock reflected in the charge is acted upon when the court
decides to commit the accused for sentence by the Regional Court,
without such value either having been admitted or proved.

As stated, the value of the stock is crucial
to sentencing as it determines whether the prescribed minimum
sentence applicable should be one of imprisonment of not less than
two or
twenty
years. There is a substantial difference between the two prescribed
sentences and the need to determine the proper value of the stock is
almost imperative when it comes to border cases where a difference of
as little as N$1-00 in the value of the stock could result in a
sentence of twenty, instead of two years imprisonment. It is
therefore not something that should lightly be considered by the
court and, in my view, it deserves proper consideration; unlike the
trend in some courts where no or little effort is made by the
prosecution – as in the present case – to prove
the value of the stock by calling a
(knowledgeable) witness in terms of s 112 (3) to give evidence on the
value of the stock in question, or at least give a reliable
estimation of the value of stock of similar size and quality, where
such stock is no longer available for assessment. I can see no
reason why such value cannot already be determined in the
magistrate’s court before
the accused is committed for sentence; in fact, in my view, it should
already be determined in the magistrate’s court because that
court would only be entitled to come to the conclusion that the
prescribed sentence exceeds its sentencing jurisdiction, if
the facts prove the value to be NS500-00 and more.

[17] The prosecutor’s acceptance of the
appellant’s perceived value of N$1 200-00 of the neat in this
case was, although within his powers to do so, unrealistic to the
value the complainant had placed on her stock (N$3 500-00) and there
is no indication on the record explaining why the value was
significantly less than what was initially estimated. It would
appear that the only reason is because the prosecutor, through his
acceptance of the lesser value, (erroneously) averted the recording
of a plea of not guilty in terms of s 113 of the Act. I find that to
be wrong and not in the interest of justice, as the complainant will
suffer financial prejudice where the court, in terms of s 17 of Act
12 of 1990, decides to make a compensatory order towards the
complainant, which order may not exceed
the sum of the actual loss or damage suffered as a result of the
offence committed. Prosecutors should
therefore be careful not to reduce the value of stock of their own
volition and without having first consulted the complainant in that
regard. There might be good reason why the stock is of high value
i.e. it might be a stud animal.

[18] Whereas it is the prosecution who relies on
the value of the stock in question, the State obviously carries the
onus to prove such value to the satisfaction of the court. In
circumstances where the value of the livestock had not been
determined prior to the matter being received in the Regional court;
or the latter court is not satisfied that the accused unequivocally
admitted the value, it may, to ensure that the court has sufficient
information for determining a suitable sentence, inform the
prosecution accordingly and invite evidence under s 112 (3) of the
Act. See: S v Sikhindi
1978 (1) SA 1072 (N); S v Phakati
1978 (4) SA 477 (T); S v Bromkamp
1978 (2) PH H205 (NC) and S v Serumala
1978 (4) SA 811 (NC).

Should the prosecution for some reason or another
fail to establish the value of the stock in question, the Regional
Court is constrained to apply the provisions of s 14 (1)(a)(i) and to
sentence the accused, if he is a first offender, to imprisonment of
not less than two years, because it was not proved that the value of
the stock was N$500-00 or more. In the present circumstances Mr.
Tjombe urged
the Court to follow the latter course and to impose a sentence based
on the minimum prescribed sentence of two years imprisonment;
alternatively, to remit the matter to the court a
quo to have the value of the stock
determined.

SENTENCE

[19] When the appeal
against sentence was argued before us, the Court raised the question
with counsel whether it was not irregular for the Regional Court to
proceed with sentencing without
first having made a formal finding of guilty in terms of s 114 (3)(a)
of the Act. Both counsel addressed us on the point but have
different views as to the impact of the omission on the court
proceedings. Mr. Wamambo
submitted that the appellant suffered no prejudice as he had already
admitted the value and therefore the Court should not interfere with
the sentence imposed by the Regional Court; whilst Mr. Tjombe
argued that it was irregular, justifying interference by this Court.

[20] Section 114
(3)(a) in peremptory terms states that “the
court shall
make a formal finding of guilty and sentence the accused.”
Presumably the intention of the Legislature why the Regional Court
has to make a formal finding of guilty is because in terms of s s (2)
the accused could still cast doubt in that court’s mind as to
his guilt. Section 114 (2) reads:

“(2)
Where an accused is committed under subsection (1) for sentence by a
regional

court,
the record of the proceedings in the magistrate's court shall upon
proof

thereof
in the regional court be received by the regional court and form part
of

the
record of that court, and the plea of guilty and any admission by the
accused

shall
stand unless
the accused satisfies the court that such plea or such

admission
was incorrectly recorded.
(emphasis provided)

Whereas the appellant in the present case was
unrepresented, the Regional Court should have brought the provisions
of s 114 (2) to his attention and inform him that he could (on a
balance of probability) satisfy the court that his plea and/or
admissions were incorrectly recorded.
If the court thereafter was of the opinion that the plea of guilty
and admissions made by the appellant were indeed correctly recorded,
it then had to formally convict the appellant and only thereafter
proceed with sentence. If it was not satisfied, then a plea of not
guilty had to be entered and the State requested to lead evidence.
In casu the
Regional Court’s omission to act accordingly amounts to an
irregularity and in these circumstances it cannot, in my view, be
said that the appellant was given a fair trial as far as it concerns
the proceedings on sentence.

[21] In the result, the following order is made:

1. 
   The application for condonation is granted.

   
   

2. 
   The appeal against conviction is dismissed.

   
   

3. 
   The appeal against sentence is upheld and the
   matter is remitted to the Regional Court sitting at Opuwo to
   sentence the appellant in accordance with the guidelines set out
   herein.

   
   

4. 
   The sentencing court must have regard to the period already served
   by the appellant.

   
   

__________________________

LIEBENBERG, J

I concur.

__________________________

TOMMASI, J

ON BEHALF OF THE APPELLANT: MR.
N.TJOMBE

Instructed by: Amicus
Curiae

ON BEHALF OF THE RESPONDENT:
MR. WAMAMBO

Instructed by: Office of the Prosecutor-General