CASE NO.: CA 12/2011

IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI

In the matter between:

ANTONIUS KAMENYE
....................................................1^ST
APPELLANT

ALEX ANANIAS
…...........................................................2^ND
APPELLANT

and

THE STATE

CORAM: LIEBENBERG
J et TOMMASI J

Heard on: 23 January 2012

Delivered on: 10 February 2012

APPEAL JUDGMENT

TOMMASI,
J.: [1]
The appellants appeared before the Oshakati regional court on a
charge of housebreaking with intent to steal and theft of goods
valued at N$67,356.40. They were convicted and sentenced to 6 (six)
years imprisonment of which 3 (three) years were suspended for a
period of five years on the usual conditions. They are appealing
against both conviction and sentence.

[2] Mr
Shileka appeared for the respondent; Ms Mainga for the 1^st
appellant
and the 2^nd
appellant
appeared in person. The 1^st
appellant
brought an application for condonation for the late filing of the
additional/amended grounds of appeal. The only ground on which the
application for condonation was opposed by the respondent, was that
there are no reasonable prospects of success. Respondent conceded
that it may be accepted by the Court that 2^nd
appellant’s
notice of appeal was noted within the time frame provided for in Rule
67(1)¹.

[3] The
grounds contained in 1^st
appellant’s
notice of appeal in respect of the conviction may be summarised as
follow:

(1)
None of the State witnesses implicated him;

(2)
The State failed to call the owner of the gambling machine repair
workshop and the gambling machine was not brought before the court;

(3)
The two State witnesses namely the owner and Samuel Shivute,
contradicted one another in respect of the offloading of the gambling
machine

[4] The 1^st
appellant’s additional grounds of appeal in respect of
conviction are that the magistrate erred in law or in fact by:

(1)
relying on the evidence of Samuel Shivute and not approaching such
evidence with caution as he was a likely accomplice;.

(2)
relying on the doctrine of recent possession when there was no
evidence on record suggesting that the first appellant was indeed
found in possession of the jackpot machine and there was a
contradiction in the State’s case regarding who offloaded the
said machine;

(3)
ignoring the fact that all the direct evidence links the second
appellant as opposed to the first appellant i.e it was the second
appellant who was found in possession of the cash box from the
machine; It was the second appellant who negotiated the sale of the
machine;

[4]
not taking into account the testimony of Ester Ashipala when she
indicated that the police included certain statements that were not
made by her in an attempt to implicate the first appellant.

[5]
failing to discharge the 1^st appellant at the close of the
State’s Case.

(6)
ignoring the fact that the 1^st appellant was not found in
possession of any of the other goods alleged to have been stolen from
Namukuku Noshipe’s Bar.

[5] The original grounds are
essentially incorporated in the additional grounds and overlaps with
the grounds raised by 2^nd appellant.

[6] The only valid grounds to
be gleaned from the notice of appeal of 2^nd appellant who
drafted his notice of appeal without the assistance of a legal
practitioner are the following;

(1)
That the magistrate failed to take into consideration conflicting
evidence on the offloading of the gambling machine from the vehicle
and that possession of the stolen machine was thus not proven;

[2]
That the magistrate failed to call the owner of the place where the
gambling machine was confiscated by the police; and

[3]
That the magistrate failed to take into consideration that the
witness Samuel
Shivute implicated him as a result of past differences.

[7] The facts of the case are
relatively uncomplicated. An employee of Onamukuku Noshipe
bar/supermarket testified that during the early morning hours on 22
February 2005 unidentified persons broke into the afore-mentioned
supermarket/bar. Although she and her room-mates heard the sounds
they were too scared to investigate. At around 6H00 she found the
door which she had locked the previous night, wide open. She reported
it to the police who requested her to compile a list of items stolen.
The value of the items stolen was given as N$67,356.40. She testified
that she saw three sets of footprints leading to a place where she
observed tracks of a motor vehicle.

[8] Samuel Shivute testified
that he was approached by 2^nd appellant to purchase a
gambling machine. He first wanted to see the machine and to make sure
it was in working order. They departed for Oshikuku and 1^st
appellant joined them at some point. They arrived at a certain house
from where 1^st and 2^nd appellant collected the
machine. He transported the gambling machine to Bush Bar which was
also a workshop for repairs of gambling machines. Upon their arrival
at the bar they were confronted by the police and the owner of the
machine and 1^st and 2^nd appellant were
arrested. The police then off-loaded the gambling machine from his
vehicle.

[9] Vaino Hamutheno, the owner
of the gambling machine testified that he received information from
the owner of Bush Bar that a gambling machine will be sold at the
bar. He alerted the police and they waited at the bar. Samuel Shivute
arrived with both appellants who offloaded the machine. The police
and the owner confronted them. Samuel Shivute was identified as the
purchaser and 1^st and 2^nd appellant were
arrested. Mr Hamutheno identified the machine as his by unlocking it
with keys in his possession and by the serial number which appeared
thereon. The gambling machine, although damaged was in working order.

[10] Detective Warrant Officer
Amwandangi testified that he found the money box of the gambling
machine at the house of 2^nd appellant. The sister-in-law
of the 1^st appellant, a State witness, denied that she
gave a statement to the police to the effect that 1^st
appellant brought a gambling machine to her house. She testified that
he brought a machine in a black bag to her house. 1^st
Appellant informed her that it was a sewing machine and this witness,
although she testified that she did not see it, was convinced that it
was a sewing machine.

[11] The two appellants denied
that they met with Samuel Shivute and travelled with him to Oshikuku.
They denied that they arrived with him in his vehicle at Bush Bar.
Their version was that 1^st appellant was a taxi driver and
2^nd appellant was his customer. 1^st appellant
took 2^nd appellant to Bush Bar and bought a litre of coke.
2^nd appellant waited at Bush Bar for his relative. 1^st
appellant invited him to share the coke and they were arrested by the
police whilst doing so.

[12] Ms Mainga, counsel for the
1^st appellant conceded that the 5^th ground was
without merit and abandoned same. This concession was properly made.
The application for discharge is interlocutory in nature and it "is
entirely a matter for the opinion of the judge; and his decision
cannot be questioned on appeal”. (S v CAMPBELL AND
OTHERS 1991 (1) SACR 435 (Nm) on page 444 D-E).

[13] The main thrust of both
appellants’ grounds is that the magistrate misdirected himself
in finding that the appellants were found in possession of the
gambling machine.

[14] No
direct evidence was led that the appellants broke into the
bar/supermarket. The State relied on the doctrine of recent
possession to seek a conviction on housebreaking with intent to steal
and theft. The State had to prove beyond reasonable doubt that (1)
the appellants were found in possession (2) of recently stolen goods
and (3) that they failed to give an explanation which could
reasonably be true. If the above was proven by the State beyond
reasonable doubt then the court a
quo was
entitled to infer that the appellants had broken into the
bar/supermarket and had stolen the goods listed by the witness.²

[15] It was common cause that
the gambling machine, one of the items stolen from the shop, was
recovered two days after the commission of the crime occurred.
Ownership was not disputed and neither was the fact that it was
returned to the owner after it was confiscated by the police. It was
not required of State to produce the gambling machine in court or
prove that the appellants were also found in possession of the other
items which were stolen. It was sufficient for the State to prove
that the property which was stolen from the supermarket/bar, in this
instance the most valuable item, was found in possession of the
appellants.

[16] Both appellants were of
the view that the magistrate erred by accepting the evidence of
Samuel Shivute albeit for different reasons. 1^st
appellant’s counsel argued that the magistrate should not have
relied on the evidence of this witness as he was a likely accomplice.
2^nd appellant felt that the witness displayed a bias
because they had a prior disagreement. The magistrate in his
judgement stated the following:

“Although
for all intents and purposes this witness qualifies on all fours to
be an accomplice witness and the Court is supposed to apply the
cautionary rule because this witness was about to buy stolen property
under circumstances which show that he probably knew that this was
stolen property and therefore had an interest to protect himself”

It can safely be said that the
magistrate was alive to the fact that he should treat this witness’
evidence with caution.

[17] The magistrate accepted
the testimony of Samuel Shivute that he arrived at Bush Bar with the
two appellants in his vehicle as this was corroborated by the owner
of the gambling machine whom he found to have been a credible
witness. He further noted that Samuel Shivute had reason to protect
himself as it was evident that this witness had a suspicion that it
was a stolen machine. The magistrate discounted the fact that he
would shift the blame on the appellants as he testified that only 2^nd
appellant negotiated the sale with him.

[18] The disagreement as
alleged by 2^nd appellant was not put to the witness and
neither did 2^nd appellant testify that it occurred. It was
only during his address to the court a quo before conviction
that it was raised for the first time. The magistrate correctly
disregarded this.

[19] This Court is satisfied
that the magistrate not only cautioned himself as to the inherent
dangers of this witness’ evidence but treated his evidence with
circumspection where uncorroborated.

[20] A further ground raised by
2^nd appellant was that the State failed to call the owner
of the bar to testify as to who brought the gambling machine there.
The magistrate in his statement in terms of rule 67(3)(b) indicated
that the evidence before the court a quo was adequate. There
is no evidence on record that the owner was present at the material
time and, as correctly pointed out by the magistrate, the evidence
before the court a quo adequately proved the fact that the
appellants arrived at Bush Bar with Samuel Shivute.

[21] Both appellants submitted
that the magistrate failed to take into consideration the
contradiction between the evidence of Mr Hamutheno and Samuel Shivute
in respect of who offloaded the machine from the vehicle. The
magistrate accepted the evidence of Mr Hamutheno in respect hereof
and it is not evident that he considered that this contradicted the
testimony of Samuel Shivute. What is clear is that the magistrate
relied on the evidence of Mr Hamutheno as he found him to be a
credible witness. It is my considered view that this is not a
material contradiction. Who offloaded the machine was not material to
the determination of the key dispute. The disputed fact was whether
they arrived at Bush Bar in the vehicle of Samuel Shivute with the
gambling machine.

[22] 1^st Appellant’s
grounds referred to the failure of the magistrate to consider the
fact that the sister-in-law testified that the police recorded the
wrong information when they took the statement of this witness. The
manner in which the State dealt with this witness and the manner in
which the statement was adduced into evidence may be criticised. The
magistrate however correctly did not rely on this witness’
evidence as it was irrelevant. The police did not testify before the
magistrate in respect of where the gambling machine was stored and
their conduct has no bearing on the facts of this case. The
magistrate was not required to consider this fact.

[23] 1^st Appellant’s
counsel submitted that the magistrate erred when he failed to take
into consideration that all the evidence point to the fact that 2^nd
appellant was the perpetrator of the offence since he negotiated the
sale and the coin box of the gambling machine was found in his room.
The magistrate in his judgement did not rely on the evidence of
Detective Amwandangi. Although it was not stated in his judgment the
reason for disregarding this witness’s evidence was clear. His
evidence contradicted that of the owner who testified that the
gambling machine was in working order when he recovered it and did
not testify that the coin box was recovered at a later stage. His
evidence did not prove that the coin box found was indeed a part of
the gambling machine which belonged to Mr Hamuthenu. This ground in
essence relate to the question whether the State proved that 1^st
appellant was “found to have been in possession”
of the gambling machine and will be dealt with hereunder.

[24] This Court is not
persuaded that the magistrate misdirected him on the facts when he
accepted the evidence presented by the State i.e that: 2^nd
appellant approached Samuel Shivute to negotiate the sale of the
gambling machine; 1^st appellant joined them at some stage;
that they travelled to Oshikuku; 2^nd appellant took him to
the house where 1^st and 2^nd appellant collected
and loaded the gambling machine; and that they took the machine to
the gambling machine repair workshop at Bush Bar in order to be sold
to Samuel Shivute.

[25] What remains to be
determined is whether these facts support a finding that the
appellants were found to have been in possession of the gambling
machine. In S v ADAMS 1986 (4) SA 882 (A) CORBETT JA at page
890 G – J & 891 A – states the following:

In
general the concept of "possession" ("besit"),
when found in a penal statute, comprises two elements, a physical
element (corpus ) and a mental element (animus ). Corpus consists
either in direct physical control over the article in question or
mediate control through another. The element of animus may be broadly
described as the intention to have corpus, ie to control, but the
intrinsic quality of such animus may vary, depending upon the type of
possession intended by the statute. At common-law a distinction is
drawn between civil possession (possessio civilis ) and natural
possession (possessio naturalis ). Under the former the animus
possidendi consists of the intention on the part of the possessor of
keeping the article for himself as if he were the owner. Under the
latter the animus need merely consist of the intention of the
possessor to control the article for his own purpose or
benefit, and not as owner. In penal statutes, however, the
term "possession" would seldom, if ever, be construed as
possessio civilis and this may, therefore, be left out of account. In
the case of certain such statutes it has been held that "possession"
connotes corpus and an animus akin to that required for possessio
naturalis. In others the Courts have interpreted "possession"
to comprehend corpus plus the animus to control, either for the
possessor's own purpose or benefit, or on behalf of another (this
latter alternative being equivalent to what is often termed "custody"
or detentio) or as meaning "witting physical detention, custody
or control" (see S v Brick 1973 (2) SA 571 (A) at 580C).”
[my emphasis]

[26] The facts found to have
been proven by the State justified the conclusion reached by the
magistrate that the 2^nd appellant had control over the
gambling machine and that such control was for his benefit.

[22] Counsel
for the 1^st
appellant
argued that these facts do not support a finding that he, together
with 2^nd
appellant
was found to have been in possession of the gambling machine. In S v
MAJA AND OTHERS 1998 (2) SACR 673 (T) at p676
G-H, STAFFORD J stated the following:

“While
it is clear that more than one person can possess a single object
such as a firearm - S v Mtshemla and Others 1994 (1) SACR 518 (A) at
523e - it is clear that there must be evidence, either direct or
circumstantial, to justify a finding that there is such possession -
see S v Nkosi (supra) at 286i-287b.”

[27] 1^st
Appellant
travelled with 2^nd
appellant
and Samuel Shivute to Oshikuku; helped 2^nd
appellant
carry the gambling machine from a house in Oshikuku; and was present
in the vehicle when they arrived at Bush Bar. 1^st
appellant
however was not present when 2^nd
appellant
negotiated the sale and at no time was the sale agreement discussed
with him. The magistrate however held the view that his failure to
dispute his presence in the vehicle during cross-examination of the
owner and Samuel Shivute raised the expectation that he would explain
his presence in the vehicle. 1^st
appellant
was represented at the trial by a legal practitioner and there was a
duty on his counsel to put it to the two state witnesses that 1^st
appellant
did not accompany Samuel Shivute to Oshikuku and did not arrive with
him at Bush Bar.³
1^st
appellant
however testified that he was not present in the vehicle at all. The
magistrate thus inferred from his failure to account for his presence
in the vehicle that he together with 2^nd
appellant
had jointly been found to have been in possession of the machine.

[28] This Court is satisfied
that the magistrate, having rejected the evidence of both appellants,
correctly concluded that both the appellants were found to have been
in possession and that no reasonable explanation was tendered. The
magistrate furthermore correctly applied the doctrine of recent
possession given the fact that the appellants were found in
possession of a fairly large item which was part of items stolen from
a shop/supermarket only two days before it was found in the
possession of the appellants.

[29] The 1^st
appellant
appealed against sentence on the grounds that the magistrate did not
take into consideration that the gambling machine was recovered and
that he failed to take into account the best interest of the
children. 2^nd
appellant
submitted that the sentence imposed was harsh under the
circumstances.

[30] It is
trite law that the Court of appeal would not easily interfere with
the sentence imposed by the trial court unless there was an
irregularity in the proceedings or a material misdirection by the
trial court or if the sentence is shockingly disproportionate to any
sentence that the Court of appeal would have imposed. ⁴

[31] The magistrate dealt with
the fact that the gambling machine was recovered in his reasons for
sentence but did not consider this to be a mitigating factor. The
reason advanced was the fact that the machine was recovered by the
ingenuity of the police and the complainant. The magistrate in his
reasoning cannot be faulted. The sentencing court has to determine
the degree of moral guilt of an accused. The facts surrounding the
recovery of the machine cannot under the circumstances be said to
have lessened the degree of blameworthiness of the appellants. Had
the appellants out of their own volition returned the stolen items,
it could have been an indication of their contrition and it would
have mitigated the impact of the crime they had committed. The
magistrate therefore correctly dealt with this aspect.

[32] The second ground deserves
closer scrutiny. The magistrate indeed considered the fact that the
accused was a family man and that he was the breadwinner as well as
other mitigating circumstances. After considering other factors
however he concluded that a custodial sentence is warranted. The
magistrate can hardly be faulted in his thorough consideration of all
factors. The grievance, as I understand it, was the magistrate failed
to take into account the welfare of the children when he decided that
a custodial sentence was appropriate.

[33] Counsel
for the appellant in her heads of argument cited a South African
authority S v M 2011 (7) BCLR 651, a case which I have been unable to
find, in support of her argument that a sentencing court should take
into account that children’s interest are paramount. The same
view was held in S v M (CENTRE FOR CHILD LAW AS AMICUS CURIAE) 2007
(2) SACR 539 (CC) (2008
(3) SA 232; 2007 (12) BCLR 1312) where that Court deliberated on the
constitutional rights of the child and the implications thereof when
a court considers an appropriate sentence.

[34]
Although both the South African and Namibian constitution accord
children certain rights and protection, the provisions are
differently worded. It is unfortunate that counsel did not present
full argument on this point and neither do the evidence presented in
this case support this ground. Counsel should bear in mind that the
Court is guided and assisted by legal practitioners to present
comprehensive argument before Court particularly if they wish to
persuade the Court to rely on persuasive authority of other
jurisdictions⁵.

[35] 1^st
appellant
was legally represented during the sentencing. The duty to submit all
the relevant information in mitigation rests on the accused. Apart
from indicating to the court a
quo that
the appellant had 8 children, limited information was placed before
the magistrate on the welfare of the children. A welfare report would
have assisted the magistrate to fully understand what the impact of
custodial sentence would have been on the welfare of the children.
Legal representatives should assist the courts by investigating all
relevant considerations in mitigation of sentence. The appellant can
hardly complain if not all the relevant information was placed before
the court a
quo that
proper consideration was not given the welfare of the children. This
ground cannot therefore be entertained.

[36] 2^nd
appellant
submitted that the sentence imposed was harsh. This Court’s
approach to crimes of this nature has been made clear and there is no
need to restate same.⁶
Housebreaking
with intent to steal and theft is viewed as a serious offence. It,
despite a robust approach by our courts, remains prevalent. This
Court has sanctioned deterrent sentences to be imposed. The fact that
three years imprisonment was suspended is indicative that deterrence
was not the only consideration when the magistrate imposed the
sentence. This Court is not persuaded that the magistrate did not
exercise his discretion judiciously or that the sentence is
disturbingly inappropriate.

[37] This
Court considered the 1^st
appellant’s
appeal on both his original notice which was filed in time as well as
the additional grounds despite the fact that same was filed out of
time. The Court accepted the explanation given by 1^st
appellant
for the late filing of additional grounds therefore the Court
entertained the additional grounds.

[38] In the premises the
following order is made:

1. 
   The application for
   condonation for the late filing of 1^st appellant’s
   additional grounds of appeal is granted

   
   

2. 
   1^st appellant’s
   appeal against conviction and sentence is dismissed;

   
   

3. 
   2^nd appellants
   appeal against conviction and sentence is dismissed.

   
   

__________________________

TOMMASI, J

I concur

__________________________

LIEBENBERG, J

ON BEHALF OF THE 1^ST
APPELLANT Ms. Mainga

Instructed by: Inonge Mainga
attorneys

ON BEHALF OF THE 2^ND
APPELLANT In person

ON BEHALF OF THE RESPONDENT
Adv. Shileka

Instructed by:
Prosecutor-General’s Office