Court name
High Court
Case number
CA 200 of 2007

Nakathingo v S (CA 200 of 2007) [2011] NAHC 47 (24 February 2011);

Media neutral citation
[2011] NAHC 47




In the matter between:





on: 23 October 2009

on :
February 2011


This is an appeal against sentence only. The accused was convicted
in the magistrates' court sitting at Outapi for stock theft in
contravention of the provisions of Act 12 of 1990, section 11 (1)

Due to the fact
that the value of the stolen two heads of cattle was N$3 800.00 the
case was transferred to the Regional Court for purpose of
sentencing. The appellant was sentenced to 20 years imprisonment.

[2] It is settled
law that punishment falls within the discretion of a trial court.
This discretion is not easily interfered with on appeal if it had
been exercised judicially.

[3] A Court of
appeal will only interfere with the discretion of the trial
regarding sentence on limited grounds, namely:

"When the
trial court has not exercised its discretion judicially or properly.
This occurs when the trial court has misdirected itself on facts
material to sentencing or on legal principles relevant to
sentencing. This will also be inferred where the trial court acted
unreasonably and it can be said that the sentence induces a sense of
shock or there exists a striking disparity between the sentence
passed and the sentence this court would have passed or if the
sentence appealed against appears to this court to be so startlingly
or disturbingly inappropriate as to warrant interference by this
court. (S v Van Wyk 1993 NR 426 (SC) at 443 also 1992 (1) SACR 147
Nms at 165)."

Gaseb and Others 2000 NR 139 (SC) at 167 H -1).

[4] Section 14
(1)(a)(ii) of Act 12 of 1990 (as amended by Act 19 of 2004)
prescribes an imprisonment of not less than 20 years in those
circumstances where a person has been convicted of theft of stock of
which the value is N$500.00 or more.

[5] Section 14(2)
of Act 12 of 1990 provides that if a court is satisfied that
substantial and compelling circumstances exist which justify the
imposition of a lesser sentence than the sentence prescribed it
shall enter those circumstances on the record of the proceedings and
may thereupon impose such lesser sentence.

[6] The
complainant during the trial in the district court testified that
two heifers and one ox had been stolen by the accused person. He
further testified that the value of each heifer was N$1 900.00 and
the value of the ox was N$700.00. The value of these stock had not
been disputed by the accused during cross-examination. The accused
was convicted of 2 head of cattle valued at N$3 800.00.

[7] The accused
person is a lay person and was unrepresented during the trial in
both the district and regional court.

[8] The accused
was a first offender. In mitigation he stated that he is single,
with no dependants. That he was a farm labourer who worked for the
complainant and earned a wage of N$100.00 per month. It is also
clear from the record that the accused person showed some
contrition. His age as reflected on the charge sheet was 22 years.

The magistrate
asked the accused the following question:

you have any substantial and compelling reasons why this

court should
not send you to prison for not less than twenty years ?

or wage was very little compared to what I used to do for

complainant. I have my clothes and blankets at complainant's cattle
post. That is all."

[9] To ask a lay
person like the accused whether he wants to furnish substantial and
compelling circumstances to court is with all respect meaningless.
How does a lay person know what is meant by these terms, if even
legally trained persons grapple with this concept ?

[10] The accused
was not legally represented and it was thus the duty of the
magistrate to explain to him the provisions and implications of
section 14 of the Act. (See S v Kauleefelwa 2006 (1) NR 102 at 105
C). This the magistrate failed to do.

[11] In
particular the magistrate must have explained to him the difference
in gravity of a sentence in respect of stock below the value of
N$500.00 and stock to the value of N$500.00 or more. The magistrate
failed to do so.

The accused must
then be afforded the opportunity to take issue with the value of the
stolen cattle and this must appear from the record.

The accused must
further be afforded the opportunity to adduce proof of the existence
of substantial and compelling circumstances. Where the accused
person is a lay person and unlikely to fully understand this concept
the court must explain to him that the court will take into
consideration all facts and factors the accused wishes to advance,
in order for the court to come to a just decision regarding the
existence or otherwise of substantial and compelling circumstances.

It has been
stated (cf S v Victor Mbishi Mishe Review Case No. 1425/2006
delivered on 14 November 2006; S v George Johannes Kambonde Review
Case No. 1480/2006; appeal judgment of Levi Gurirab v The State Case
No. CA 190/2004 delivered on 12 July 2005) that it is imperative
that the accused must be assisted during this process.

It is the duty of
the magistrate to put such relevant questions to the accused in
order to obtain sufficient information in order to be put in a
position to evaluate the information and to come to a just decision
on this issue.

Some of the
questions that could have been asked include: for how long he had
been employed by the complainant, what additional (if any) benefits
he received e.g. rations or clothes, whether he indeed sold the
cattle, for what price, and what he did with the money, if he had
received any money from the buyer, and whether there exists a
possibility of retrieving the animals.

accused indicated during questioning by the magistrate in the
district court that he
sell the two heads of cattle to one
was Mateus ? One would have expected that this would have been
further investigated.

[12] It must be
stated, despite the submission by counsel that the magistrate passed
sentence without receiving evidence of the value of the stock, that
the complainant testified regarding the value of two heifers. What
the magistrate failed to do however, even at the stage where his
right to cross-examination was explained to the accused, was also to
bring to his attention the provisions of section 14 of the Act and
to afford him the opportunity at this stage where testimony was
being led regarding the value of the stock, to take issue with the
value thereof especially in light of the fact that the accused
during questioning in terms of section 112 (1) (b) of Act 51 of 1977
valued the

two heifers at
N$1 800.00.

does not appear from the record whether or not the magistrate before
passing sentence considered whether substantial and compelling
circumstances exist in this matter. It can only be inferred from the
sentence imposed that no substantial and compelling circumstances
were found to exist.

[14] It appears
to me even with the available information on record that substantial
and compelling circumstances do exist in particular if one has
regard to the age of the accused, that he believed that he was
financially exploited by the complainant, the fact that his parents
were unemployed and not in a position to financially assist him, the
fact that he is a first offender and the fact that he showed
contrition, which justifies the imposition of a sentence less than
the prescribed minimum of 20 years imprisonment.

[15] This Court
is alive to the fact that stock theft is a serious offence and that
a large majority of owners of stock depend on their livestock as a
means of generating income.

[16] In dealing
with first offenders presiding officers should keep in mind the
provisions of section 14 (4) of the Stock Theft Amendment Act 19 of
2004 which reads as follows:

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 a person was at the time of the commission of any such offence
eighteen year of age or older."

[17] The
provisions of this section in my view are not applicable to first

[18] Section 297
(4) of Act 51 of 1977 reads as follows:

"Where a
court convicts a person of an offence in respect of which any law
prescribes a minimum punishment the court may in its discretion pass
sentence but order the operation of a part thereof to be suspended
for a period not exceeding five years on any condition referred to
in paragraph (a) (i) of subsection


[19] In S v David
Sacky Kharuchab High Court Review Case No. 192/2008 delivered

on 26-02-2007
Silungwe, AJ (Liebenberg J concurring) stated the following at
paragraph 5:

once substantial and compelling circumstances are found to be
present, and such circumstances are necessarily entered on the
record of the proceedings, the court has two options, to wit, it may
simply impose a lesser sentence than the minimum sentence prescribed
in subsection (1) (a)(i) or (ii) of section 14 aforesaid; or in the
case of a first conviction for stock theft (vide section 14 (4) of
the Act), it may impose such lesser sentence but order that a part
thereof be suspended for a period not exceeding five years on such
conditions as it may deem appropriate, in terms of section 297 (4)
of the Criminal Procedure Act, Act 51 of 1977."

I have considered referring the matter back to the sentencing
magistrate but since the magistrate acted as a relief magistrate at
that stage and is no longer holding such position I shall impose a
sentence which is appropriate in the circumstances in view of the
irregularities referred to

[21] In the
result the following orders are made:

  1. The conviction
    is confirmed.

  2. The sentence is
    set aside and substituted with the following sentence:

10 years
imprisonment of which 2 years are suspended for a period of 5 years
on condition the accused is not convicted of theft of stock in
contravention of the provisions of section 11 (1)(a) of Act 12 of
1990, committed during the period of suspension.

3. The sentence
is in terms of the provisions of section 282 of the Criminal
Procedure Act, Act 51 of 1977 antedated to 9 March 2006.


I agree