Court name
High Court
Case number
CA 92 of 2009
Title

S v Lwishi (CA 92 of 2009) [2011] NAHC 336 (18 November 2011);

Media neutral citation
[2011] NAHC 336
Coram
Liebenberg J
Tommasi J













Special
Interest”



CASE NO.: CA 92/2009











IN THE HIGH COURT OF NAMIBIA



HELD AT OSHAKATI







In the matter between:











PETRUS LWISHI
…................................................................................APPELLANT







and







THE STATE
….....................................................................................RESPONDENT











CORAM: LIEBENBERG, J et
TOMMASI, J.







Heard on: 11 November 2011



Delivered on: 18 November 2011











APPEAL JUDGMENT















LIEBENBERG,
J.:
[1]
Appellant appeared in the Ondangwa Magistrate’s Court on a
charge of theft (read with the provisions of the Stock Theft Act 12
of 1990), of three head of cattle; and after a trial, was convicted
as charged. The accused was thereafter committed for sentence in the
Regional/Divisional Court where he was sentenced to 20 (twenty)
years’ imprisonment of which 10 (ten) years’ imprisonment
suspended on the usual conditions. The appeal lies against sentence
only.







[2] Ms Horn
appeared before us
amicus
curiae
for
the appellant, while Mr
Lisulo
represented the
respondent. We are indebted to counsel for the assistance provided to
the Court in this regard.







[3] Appellant noted
the appeal outside the prescribed time limits
1
and made proper
application for condonation of the late filing of the notice,
explaining the delay. The respondent, in my view correctly, considers
the explanation to be acceptable and furthermore conceded that there
are prospects of success on appeal against sentence, which, in Mr
Lisulo’s
view,
was on the harsh side. As will be shown
infra,
the concession is well made.







[4] The gist of the appellant’s
appeal is that he wants the sentence, imposed by the
Regional/Divisional Court, to be “reduced”. In the Notice
of Appeal the appellant enumerated several points on which the
sentencing court misdirected itself in sentencing by giving no or
insufficient consideration to the personal circumstances of the
appellant. In summary these are: The appellant being a first
offender; he is self-employed and the only breadwinner of his
school-going children as their mother is unemployed; he furthermore
supports his siblings; and lastly, that the appellant’s
property (the nature thereof not mentioned), would suffer damage in
his absence.







[5] The appellant testified in
mitigation and said that he is single with two children of
school-going age, residing with him; that he has stock and that there
are no one else who could take care of his stock and mahangu fields
during his absence. Although unemployed, he makes a living from his
cattle. His evidence in mitigation was not challenged and no further
submissions were advanced by the appellant. The public prosecutor
thereafter submitted that the offence of stock theft was very serious
and prevalent in the area; hence, asking for a deterrent sentence.







[6] The magistrate in sentencing,
pronounced himself in a single sentence in the following terms:



Court
is off the opinion that the compelling and substantial circumstances
are present in the source [sense] that accused is the sole provider
of his two minor children.” (sic)







In additional reasons submitted in
terms of Rule 67 (3) the learned magistrate submitted that, due to
the value of the cattle involved, the court deemed it proper to
impose a sentence of twenty years’ imprisonment, half of which
is suspended. The value of the stock was found to be N$5 400.







[7] It is obvious
from the record that the sentencing court found the fact that the
appellant was the sole provider for his two minor children, in
itself, a substantial and compelling factor. What is not apparent
from the record is whether the court, in reaching that conclusion,
intended imposing a
lesser
sentence as
provided for in the Act.
2
Mr Lisulo
submitted that
although the court
a
quo
found
substantial and compelling circumstances to exist, it did not impose
a
lesser
sentence
by
suspending part thereof, as it apparently intended doing.







[8] It is a
well-established principle that
the
sentence passed for a particular offence consists of both the
unsuspended and the suspended portions thereof”
3
and the Full Bench,
in
The
State v Mbahuma Tjambiru and Two Others
4
at p. 5 (para [4]),
said the following in this regard:







When
it comes to sentencing the correct approach of the trial Court is to
decide on an appropriate term of imprisonment and thereafter to
determine whether to suspend such sentence wholly (where permissible)
or partially.
The
portion of the sentence suspended thus remains an integral part of
the sentence and cannot be treated as something separate from or
additional to the non-suspended portion of the sentence
.”
(emphasis
provided)







[9] If the sentencing court intended
to impose a lesser sentence (having found that substantial and
compelling circumstances existed) by suspending half thereof, then it
misdirected itself on the law; because, as stated above, the
suspended portion of the sentence remains an integral part of the
sentence. An effective sentence of twenty years’ imprisonment
was imposed in the present case, which is the mandatory minimum
sentence under s 14 (1) (a) (ii) of the Act.







[10] However,
subsequent thereto, the Full Bench in
Protasius
Daniel and Another v The Attorney-General and Two Others,
5
struck down and set
aside the mandatory minimum sentences set out in s 14 (1) (a) (ii)
and (b) of the Stock Theft Act, 1990 as being in conflict with the
Constitution. The Prosecutor-General thereafter appealed against that
judgement to the Supreme Court and the matter is still
sub
judice
.
The effect of the appeal lodged against the judgment in the
Protasius
Daniel
-matter6
was considered by
this Court in
The
State v Ismael Huseb
7
and it found that
the
appeal against the declaration of invalidity of the two sections in
the Stock Theft Act by the Full Court would not have the effect of
suspending the operation of that judgment”
8
The Court’s
reasoning was that the relevant potions of s 14 of the Stock Theft
Act were in conflict with the Constitution since it was promulgated
into legislation and not only once the Court pronounced it to be such
in the
Protasius
Daniel-
case.
The Court applied, with approval, the
dictum
pronounced in
Minister
of Health and Another v new Clicks South Africa (Pty) Ltd and Others:
In Re Application for declaratory relief
9
that:







Any
law inconsistent with the Constitution is therefore invalid. When a
court considers and upholds a challenge to the validity of a law, it
then declares the law to be invalid, but the law’s fundamental
invalidity flows from its inconsistency with the Constitution,
not
from the court order
.”



(emphasis provided)







I respectfully agree.







[11] For purposes
of this judgment, there is no need to restate what has been decided
in either of the cases referred to above. Suffice it to say that
sections 14 (1) (a) (ii) and (b) – the latter not applicable to
this case – have been found unconstitutional and therefore, are
without force and effect. Accordingly, as far as it concerns this
appeal, the mandatory minimum sentence of not less than twenty years’
imprisonment is no longer applicable. However, the court is not
permitted to impose
any
sentence, for
example, a fine, because sections 14 (1) (a) (ii) and (b) remains
unaffected by the judgment and limits the sentencing options to that
of imprisonment.
10
The courts are
(still) enjoined to impose custodial sentences only. The effect of
the striking down is that, as far as it concerns stock valued at
N$500 and more, the court is now permitted to impose any
custodial
sentence
within its
sentencing jurisdiction without first having to determine the
existence or not of substantial and compelling circumstances. It
further brings about that the Magistrate’s Court is under no
obligation to remit to the Regional/Divisional Court for sentence,
those cases in which the value of the stock is N$500 or above; and
that court would be permitted to pass sentence itself: Provided that
it is a custodial sentence and falls within the court’s
sentencing jurisdiction, namely 5 (five) years. Whereas the mandatory
minimum sentence has been struck down, s 297 (4) of the Criminal
Procedure Act
11
no longer finds
application; hence, the courts are permitted to impose wholly
suspended sentences where it sentences under s 14 (1)(a)(ii) and
considers that to be an appropriate sentence.







[12] In instances where the
Magistrate’s Court is of the opinion that the sentence ought to
be imposed exceeds that court’s sentencing jurisdiction of five
years imprisonment, then it should invoke the provisions of either s
114 (1) or s 116 (1) of the Criminal Procedure Act – depending
on whether or not the conviction came as a result of a plea of guilty
or a trial – and remit the matter for sentence to the
Regional/Divisional Court.







[13] A further
consequence of the striking down of s 14 (1)(b) of the Stock Theft
Act is that where the Regional/Divisional Court (before the
Protasius
Daniel
judgment)
was permitted to impose
any
penalty or additional penalty
provided
for in this Act
12,
it may no longer impose sentences exceeding its normal sentencing
jurisdiction of twenty years imprisonment, because the mandatory
sentence of thirty years upon second and subsequent convictions, has
now been struck, and is no longer “provided for in the Act”.
It brings an end to the uncertainty brought about by the enactment of
s 15A, which seemingly, gave
unlimited
jurisdiction to the
Regional/Divisional Court (ordinarily having
limited
jurisdiction) when
it came to second and subsequent convictions, because the Act only
provided for mandatory
minimum
sentences without
stating the maximum that may be imposed. Of course, it could be
argued that the Regional/Divisional Court was restricted to a
sentence of thirty years imprisonment, being the penalty
provided
for in the Act”
.
However, s 14 (1)(b) clearly states that imprisonment for a period of
not
less than thirty years
may
be imposed, thereby implying that a sentence in
excess
of thirty years
could be imposed. Fortunately the ambiguity that was brought about by
s 15A, read with s 14 (a) and (b) has now come to an end.







[14] I turn now to
the appeal under consideration. The sentencing court clearly adhered
to the provisions of the Stock Theft Act (as it was obliged to do at
the time) and after finding substantial and compelling circumstances
to exist, it, notwithstanding, imposed the mandatory minimum sentence
of twenty years’ imprisonment. Although the court had a
discretion to impose a lesser sentence,
13
it imposed the
mandatory minimum of twenty years’ imprisonment, of which half
is suspended; and which, so it would appear, the court considered to
be a
lesser
sentence
.
As stated above, it is not a lesser sentence; accordingly, no effect
was given to the court’s initial intention to impose a lesser
sentence. The sentencing court clearly misdirected itself in this
respect.







[15] The fact that the Court has
struck down the mandatory minimum sentences of not less than twenty
and thirty years’ imprisonment respectively, in my view, does
not imply that the Court was of the opinion that the offence of stock
theft is not at all a serious offence; or as serious as made out by
the Legislature. Had that been the case, then it would undoubtedly
also have interfered with the mandatory sentence set out in s 14
(1)(a)(i), which it clearly declined to do. This means that in cases
of theft where the value of the stock is less than N$500, the courts
are still enjoined to invoke the provisions of the section and impose
the minimum of two years’ imprisonment in circumstances where
the accused is eighteen years of age and older; and where the court
finds no substantial and compelling circumstances to exist. There is
nothing in the Daniel-case from which it can be inferred that
the Court did not consider stock theft to be a serious offence;
neither does the striking down imply that. The current position is
that the sentence prescribed by the Legislature for stock, valued
below N$500, is (still) two years imprisonment, which the Court did
not consider to be in conflict with the Constitution. This remains
the bench mark for stock theft cases falling in that category, and
where it involves stock valued above N$500, the court’s
approach should be to commensurate the sentence with the value of the
stock involved. The offence of stock theft has always been considered
by the courts to be a serious offence, and from this Court’s
perspective, the position has not changed at all.







[16] Although the courts now have an
unfettered discretion when it comes to sentencing in cases where the
value of the stock is N$500 and more, the approach of the sentencing
court, in my view, should be to consider the usual factors applicable
to sentence, whilst mindful of the need to impose deterrent
sentences. Where appropriate, lengthy custodial sentences should be
imposed to serve as deterrence in a particular case, as well as
generally. Ultimately, that would give effect to the Legislature’s
intention to address the problem of stock theft (which is rampant in
this country), by the imposition of deterrent sentences. Hence,
deterrence, as an objective of punishment, in cases of this nature,
and where appropriate, should be emphasised.



[17] Appellant, in the present
instance, stole three head of cattle from the complainant after
having sold the same cattle to her some two months earlier for N$5
400. He thereafter sold the two stolen cows to other buyers and
slaughtered the ox, the meat of which he exchanged for mahangu. It
appears from the record that the complainant recovered only one cow
and seized the mahangu when the appellant failed to collect it. The
other cow died during the drought. Appellant was not only cunning by
first selling the animals for N$5 400 and thereafter stealing them
back and again sold them for a further N$3 620, but clearly planned
his actions in advance. These are indeed aggravating factors. Cattle
breeding forms the backbone of the economy in this part of the
country – and throughout Namibia – and the loss of cattle
to a farmer through theft, is usually a severe blow to the owner;
hence the need to discourage it by the imposition of deterrent
sentences. Cattle owners are forced to rely on the honesty of fellow
beings, for it is virtually impossible to protect their stock all
hours of the day or night.







[18] Despite the appellant being a
first offender and the father of two minor children, I am unable to
fault the court a quo for having come to the conclusion that a
custodial sentence, in the circumstances of this case, is called for.
However, the term imposed is unduly harsh and requires intervention
by this Court.







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








  1. The application for condonation of
    appellant’s non-compliance of the Rules is granted.



  2. The appeal against sentence is
    upheld.



  3. The appellant is sentenced to 10
    (ten) years’ imprisonment.



  4. The sentence is antedated to
    25.03.2009.
















_________________________



LIEBENBERG, J















I concur.







_________________________



TOMMASI, J



































ON BEHALF OF THE APPELLANT Ms. Horn







Instructed by: Amicus Curiae







ON BEHALF OF THE RESPONDENT Mr. D.
Lisulo







Instructed by: Office of the
Prosecutor-General







1Rule
67 of the Magistrate’s Court Rules




2Section
14 (2) of Act 12 of 1990 (as amended)




3S
v Labuschagne and 19 Others,
1990 (1) SACR 313 (E) at 315f-g




4Unreported
Case No’s CR 47-49/2008




5Unreported
Case No’s A 238/2009 and A 430/2009, delivered on 10.03.2011




6The
common law principle is that the noting of an appeal has the effect
of suspending the execution or operation of a judgement and order of
the Court appealed against.




7Unreported
Case No CR 95/2011 delivered on 21.10.2011




8Para
[18] at p. 9




92006
(80 BCLR (872) CC




10See
The State v Mbahuma Tjambiru and two Others (supra) at p. 8
para [7]




11Act
51 of 1977




12Section
15A of Act 12 of 1990




13Section
14 (2) states: “If a court is satisfied that substantial
and compelling circumstances exist which justify the imposition of a
lesser sentence prescribed in subsection (1)(a) or (b), it shall
enter those circumstances on the record of the proceedings and
may
thereupon impose such lesser sentence.”