CASE NO.: CR 32/2012

IN
THE HIGH COURT OF NAMIBIA

In the matter between:

THE
STATE

and

NDERIMOYE
NAHASON NGUHENIMO
….................................................ACCUSED
1

TJIMBUAA
ADEONESTUS MUGENDJE
…................................................ACCUSED
2

KAIKE
KATIRE
…........................................................................................ACCUSED
3

SAMUEL
SHOOMBE
…...............................................................................ACCUSED
4

KAMAIJANDA
TJAVERUA
….....................................................................ACCUSED
5

NGAVEZIKAME
HEI
…................................................................................ACCUSED
6

(HIGH COURT REVIEW CASE NO.: 775/2012)

CORAM:
SMUTS J

Delivered on: 15 May 2012

REVIEW
JUDGMENT

SMUTS, J.: [1]
The District Court in Otjiwarongo convicted the first, second and
third accused of stock theft of four head of cattle. That court then
proceeded to commit these accused for sentencing by the Regional
Court, given the provisions of the Stock Theft, Act 2004.

[2] The Regional Magistrate, after
considering the record of proceedings, formed an opinion that the
proceedings were not in accordance with justice and recorded the
reasons for this opinion and then transmitted the matter to the
Registrar of this court for the purpose of a review of those
proceedings pursuant to the provisions of s 116 (3) of the Criminal
Procedure Act, 1977 read with s 303 of that Act.

[3] The charge faced by the accused
was the theft of 10 head of cattle valued at N$30 000.00. There were
originally six accused but after the fourth accused had been
repeatedly absent, there was a separation of trials and the case then
proceeded against the first, second, third, fifth and six accused. At
the conclusion of the trial, the prosecutor rightly did not seek
convictions in respect of accused numbers 5 and 6 and they were
acquitted.

[4] The accused were all unrepresented
throughout the proceedings. Each provided a clear explanation at the
outset. They each denied any involvement in the theft of the
complainant’s cattle.

[5] The complainant gave evidence that
during the period of 2004 to 2006 twenty five head of cattle had gone
missing from his farm and that he suspected they were stolen. The
charge sheet was however in respect of the period December 2005 to
June 2006.

[6] The circumstances which gave rise
to the charge being laid in August 2006 are of some significance. The
complainant stated that he was approached by the police on 4 August
2006 that a certain Mr N. Koshipati, who became the main witness for
the prosecution and who was in custody at the time, wanted to see
him. He then called upon the police station at the Okakarara where Mr
Koshipati was being held. The latter approached the complainant with
an offer of providing information about the theft of the
complainant’s cattle by accused number one in exchange for
paying Mr Koshipati’s bail of N$1 600.00.

[7] Although the complainant testified
that he did not pay this bail money, Mr Koshipati nevertheless
provided information to the police which resulted in the charges
being preferred against the accused.

[8] The thrust of Mr Koshipati’s
evidence was that he had in December 2005 observed accused no. 2
driving five head of cattle in the area where he stayed. He testified
that accused no. 2 had said to him that he had been sent by his uncle
(accused no. 1) to bring the cattle from the complainant’s
farm. Mr Koshipati also testified that he noted a brand on the cattle
with certain figures or symbols which also appeared in the brand
utilised by the complainant.

[9] Mr Koshipati was however vague on
almost every detail relating to his testimony. He initially stated
that this occurred in December 2006 and only after he had been shown
his statement made to the police, did he accept that it was in
December 2005. The presiding magistrate did not however direct that
the statements should be made available to the accused for the
purpose of cross-examination as he should have done. Mr Koshipati
also stated that he could not recall the month very well either. He
recalled that it was in November – and not December as was put
to him by the prosecutor which presumably appeared in his statement.

[10] Mr Koshipati also referred to
five head of cattle which accompanied accused no. 2 even though the
prosecutor at one point sought to put it to him in an incomplete
question that there were three head of cattle and three calves. I
have already referred to the fact that the charge sheet referred to
ten head of cattle. This aspect as well as the circumstances under
which he offered to give the information to the complainant were not
canvassed at all in cross-examination. Despite this, the presiding
magistrate in his judgment curiously referred to the
cross-examination of Mr Koshipati by the accused as being thorough.
The presiding magistrate should in my view have enquired about the
circumstances under which this witness came forward (with his offer
to the complainant) to give evidence, seeing that the accused were
unrepresented. This would have been as aspect – alluded to by
the complainant – for the court to have enquired about in order
to evaluate his evidence.

[11] Accused no. 2 did however
question Mr Koshipati about his delay in coming forward with his
information – some eight months. The answer to the brief
question put to his in this regard was unsatisfactory and provided no
proper explanation for his failure to have done so. His reference to
what was told to him by the police officer, namely that the
complainant had laid a charge, although elicited hearsay, but it was
in any event directly contradicted by the complainant’s
evidence which was to the effect that the charge was only laid after
he had received information from Mr Koshipati. The police officer in
question was not called by the prosecutor to give evidence.

[12] The complainant in his evidence
also stated that when he had informed one of his former farm workers
that there had been arrests in connection with stock theft from his
farm, that worker then disappeared. The complainant suspected that
the worker in question was also implicated in the theft. This aspect
was not the subject of cross-examination or of any questions by the
court.

[13] The complainant also testified
that the first and third accused, who are brothers, had approached
him with a view to dropping the charges against them. His testimony
in that regard was however disputed by both those accused.

[14] One of the other witnesses for
the prosecution was the female partner of the first accused, Ms
Nguyapewa. She stated that accused no. 2 had in about December 2005
transported two calves and two cows from accused no. 3 to his
brother, accused no. 1. The presiding magistrate made an express
finding that she had impressed him as a witness.

[15] All of the accused gave evidence.
Their evidence in essence, was to the same effect, namely that
accused no. 2 had taken two cows and two calves from the home of
accused no. 3 to accused no. 1 pursuant to an arrangement between
them.

[16] In his judgment, the presiding
magistrate referred to Mr Koshipati’s description of the cattle
as being vague but the court made no finding at all in respect of the
credibility of this crucial witness. After referring in some detail
to the evidence, the court proceeded to make certain findings. As far
as the number of cattle was concerned, the court finding was
contradictory. In this segment of the judgment, it is stated:

“It
is also not in dispute that there are six cattle that were seen by
the witness who also came and testify before in this court, which
were driven by accused no. 2”. (sic)

[17] As I have already pointed out,
this is entirely incorrect. Mr Koshipati’s evidence was in fact
to the effect that there were five head of cattle. The reference to
six head of cattle featured in an incompleted question which was not
proceeded with by the prosecutor, referring to three head of cattle
and three calves.

[18] The court then referred to the
evidence that during December cattle were in fact brought by accused
no. 2 to accused no. 1 from the home of accused no. 3. The judgment
then proceeded along the following lines:

“There
is also undisputed evidence before this court that these cattle were
four, simply because the third state witness, in the mind of the
court was a very honest witness. The court also takes into account
the evidence of the second state witness, Mr Koshipati. He mentioned
that he met accused no. 2 with five cattle. He cannot clearly
describe the cattle but he could tell that the cattle were not from
the reserve, they were from somewhere. And he confidently testify
that in fact he was told by accused no. 1 to collect these cattle,
not accused no. 3 evidence argued before this court. That these
cattle were for the complainant. There is also evidence that, in fact
the same witness had requested the police to ask, to pay his bail of
one thousand six hundred but the complainant did not pay that bail,
he referred the matter to the police. There is no evidence,
unfortunately I must say that suggest that in fact accused no. 1 knew
where these cattle came from. How these cattle came, came in his
custody remains something which is very unclear before this court. It
was also today when accused no. 3 said, in fact they came from him
from Ombora, to come and separate the calves from the cows. Accused
no. 3 was also a farmer and if the cattle were brought to accused no.
1’s purpose, really it makes his version very shaky, because it
is only today that he introduced that part of his version. In fact he
said, there were his cattle and how he could separate them if the
cows was also they, that was also a problem and that brings his
testimony into bad light or a bit shaky. Surprisingly enough, these
cattle were collected from accused no. 1’s place of residence
and then back to him, for purposes of selling them to Meatco.
However, he proceeded and took these cattle to another place where
these cattle were slaughtered and after that, the meat was sold. The
court finds that it is not by coincidence that the number of cattle
chased and the time at which they were chased, during the December,
can possibly not true. In fact I am convinced that there was common
purpose between accused no. 1, 2 and 3 to commit this offence. Simply
because the court also is indebted to the testimony of the second
witness, because there was no good reason why he could implicate
accused no. 2 except if he met him. The court is not only satisfied
that this offence was premeditated, but it was also organised
considering the movement of the cattle from one point to the other,
to accused no. 1’s house later on to accused no. 3, brought by
accused no. 2 at accused no. 1’s place. So that itself, the
only inference that can be drawn, circumstantially the State has
proved its case beyond reasonable doubt against accused no. 1, 2 and
3. Therefore I am satisfied that the State proves its case against
accused no. 1, 2 and 3 and I thus find accused no. 1, 2 and 3 guilty
of stock theft, taking into account the provisions of the amendment
Act 19 of 2004, that is on four cattle” (sic)

[19] The Regional Magistrate in the
reasons for her opinion expressed that the proceedings were not in
accordance with justice, referred to the fact that Mr Koshipati was a
single witness in respect of the event he testified to which had led
to the six accused being charged and the first, second and third
accused being convicted. The Regional Magistrate pointed out that in
the course of giving his evidence the presiding magistrate had stated
that Mr Koshipati looked very nervous. The Regional Magistrate also
pointed out that his answers in cross-examination were vague and were
repeatedly “I don’t know”. The Regional Magistrate
also referred to the fact that the versions of the accused during the
trial remained the same and were in essence consistent with each
other. The Regional Magistrate also referred to the failure on the
part of the presiding magistrate to make a credibility finding in
respect of Mr Koshipati and the failure to indicate whether he had
applied caution when considering his testimony. The Regional
Magistrate also referred to the reliance upon the doctrine of common
purpose to find that the state had “circumstantially... proved
its case” against the accused in concluding her reasons for the
opinion that the convictions were not in accordance with justice.

[20] The unsatisfactory features of Mr
Koshipati’s evidence would appear to be overlooked by the
presiding magistrate except with reference to his vagueness of his
description of the cattle. It is clear from the record that the
evidence of Mr Koshipati was far from satisfactory. His vagueness as
to detail, coupled with the failure to properly explain the delay in
raising the alleged theft, in my view undermine his testimony. The
accused were unrepresented and did not raise in cross-examination the
circumstances under which Mr Koshipati made his offer to give
evidence in return for payment of his bail. As I have already said,
this was not canvassed by the prosecutor or magistrate either.

[21] Accused no. 2 denied the exchange
with Mr Koshipati and stated that the latter could have become aware
of the fact that he had driven cattle from accused no. 3 to accused
no. 1 at that time, given the fact that he and Mr Koshipati lived in
the same area and that the comings and goings in the area are often
widely known.

[22] It would also appear that the
version of the accused that four cattle, namely two cows and two
calves, were driven by accused no. 2 and not 5 as testified by Mr
Koshipati was not only reasonably possibly true but had been
corroborated by a State witness who the presiding magistrate had
expressly found to be credible and honest. This discrepancy in
numbers, although briefly alluded to by the presiding magistrate, was
not addressed in his judgment.

[23] It would thus seem to me that the
version of the accused could have been reasonably possibly true. This
is reinforced by the unsatisfactory features of Mr Koshipati’s
evidence, including circumstances under which he tendered the
evidence. There was also the complainant’s evidence that his
farm worker disappeared when he heard that arrests had been made in
respect of his missing livestock. The reliance on the part of
presiding magistrate upon the doctrine of common purpose was also
misplaced and unsupported by the evidence before him.

I am accordingly of the view that the
Regional Magistrate was justified in expressing the opinion that the
proceedings did not accord with justice.

[24] It is clear to me from the record
that the prosecution failed to establish the guilt of the accused
beyond reasonable doubt.

[25] It follows that the convictions
of accused no. 1, 2 and 3 cannot stand and are set aside.

____________

SMUTS, J

I agree

____________

Hoff, J