NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN
LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: CA 14/2012

In the matter between:

ISACK THAKUWO
.................................................................................APPELLANT

and

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

Neutral citation: Thakuwo v
The State (CA 14/2012) [2012] NAHCNLD 07 (19 November 2012)

Coram: LIEBENBERG J and TOMMASI
J

Heard: 02 November 2012

Delivered: 19 November 2012

Flynote: Criminal law –
Appellant convicted on a charge of stock theft – Appellant
found driving cattle in direction of Namibian/Angolan border –
Evidence proved appropriation (contrectatio) by the appellant of the
complainant’s cattle when driving them away.

Criminal procedure –
Accused at close of the State’s case under no obligation to
give evidence – However he takes a risk which increases where
there is direct evidence implicating the accused in the commission of
the crime – Prima facie case left uncontradicted,
becomes proof beyond reasonable doubt.

Criminal procedure –
Appeal – Generally – Findings on credibility –
Court on appeal will not easily interfere in with credibility
findings of trial court – Such interference necessary only
where irregularity or misdirection by trial court occurred.

Evidence – Identification
of accused – Evidence of single witness – No misdirection
by trial court on evaluation of single evidence.

Summary: Appellant was
convicted on a charge of stock theft (read with the provisions of the
Stock Theft Act 12 of 1990) involving three head of cattle. He was
convicted on the evidence of a single witness who found him driving
the cattle about 2-3 km from complainant’s home, going in the
direction of the Namibian/Angolan border. At the close of the State’s
case the appellant elected to remain silent whereafter he was
convicted. On appeal appellant questioned his proper identification
by the witness and whether there was sufficient proof of
appropriation (contrectatio) of the cattle, as element of the offence
of theft. Court on appeal satisfied that no irregularities or
misdirection on the part of the trial court in its assessment of the
evidence proved. Court further satisfied that the driving away of the
complainant’s cattle and the appellant’s assumption and
his exercising of rights of the owner in respect of the cattle,
sufficiently proved appropriation on his part of the complainant’s
property.

______________________________________________________________

ORDER

1. 
   The application for condonation is
   refused.

   
   

2. 
   The matter is struck from the roll.

   
   

JUDGMENT

LIEBENBERG J (TOMMASI J concurring):

[1] The appellant was unrepresented
when he appeared in the magistrate’s court for the district of
Outapi on a charge of theft of three head of cattle, read with the
provisions of the Stock Theft Act 12 of 1990 (as amended). He pleaded
not guilty to the charge and after evidence was heard he was
convicted as charged and committed for sentence to the regional
court, which on the 10^th of April 2011 sentenced him to
six years’ imprisonment. During the latter proceedings he was
also unrepresented. The appeal lies against his conviction only.

[2] When the appellant appeared before
us on appeal he was represented by Ms Kishi, while Mr Lisulo
appeared for the respondent.

[3] Although the appellant initially
noted his appeal against both conviction and sentence, he has in the
interim, and on the advice of his legal representative, withdrawn the
original notice and substituted same with a notice of appeal dated 01
October 2012, setting out the six grounds on which his appeal against
conviction is founded. Whereas the appeal is noted out of time and is
not in compliance with Rule 67 (1) of the Magistrates’ Court
Act 32 of 1944, the appellant seeks condonation from this court for
his non-compliance with the rules.

[4] It is well established that in
order for an application for condonation for the late noting of an
appeal to succeed, the applicant must satisfy two requirements. The
first is that there must be an acceptable and reasonable explanation
for the delay in filing the notice of appeal; and secondly, there
must be reasonable prospects of success on appeal.

[5] We are satisfied that the
appellant satisfactorily on oath explained the reasons for his
decision to withdraw the original notice and have same substituted
with a new notice setting out proper grounds on which the appeal is
founded. In view of the respondent not opposing the application for
condonation counsel were invited to argue the appeal against
conviction on the merits.

[6] The grounds enumerated in the
notice can be summarised as follows: The State failed to prove that
appellant was in actual possession of the cattle; that there was no
actual contrectatio from the complainant of the alleged stolen
cattle; appellant lacked intention to steal; evidence about appellant
‘driving the cattle’ was not clarified; appellant was not
identified by the only eye witness; and lastly, the court failed to
apply caution when considering the single evidence of this witness.

[7] The fifth ground pertaining to the
identification of the perpetrator seems to be the central and most
important ground of the appeal and I intend dealing with it first,
because if the appeal succeeds on this ground, the consideration of
the other grounds then becomes unnecessary.

[8] The trial court correctly in its
judgment identified two main issues for consideration namely, whether
it was proved that the complainant’s cattle were stolen; and
secondly, if so found, whether the evidence proved that it was the
appellant who was the perpetrator.

[9] As regards the identification of
the appellant as the perpetrator, the court found that the witness
Nembungu and the appellant had known each other prior to the incident
when Nembungu allegedly found the appellant driving three head of
cattle, belonging to one Petrus Sheetekela (complainant), in the
direction of the Namibian/Angolan border. There was an exchange of
words between them before the appellant ran away. The nature of this
encounter was that when Nembungu, who is a police officer, asked the
appellant where he was going, he replied that he was taking the
cattle home; though facing in the direction of the Angolan border.
The court found that the incident happened during the day and that
the witness and the appellant not only stood a short distance apart,
but also exchanged words; thus, there was no possibility of mistaken
identity. The court was further satisfied that the witness Nembungu
was a credible witness and that there was no reason for the court not
to rely on his evidence. Whereas the appellant elected to remain
silent, there was no evidence before the court that rebutted
Nembungu’s version of the incident when appellant was found
driving away the complainant’s cattle.

[10] The conclusion reached by the
trial court is sound and is supported by the facts. Constable
Nembungu testified that he was on duty and whilst patrolling (on
foot) the Namibian/Angolan border, he came across the appellant who
was driving three head of cattle in the direction of Angola. He
identified the cattle as being the property of the complainant. He
called out at the appellant enquiring as to where he was taking the
cattle and the reply came that he was going home; though the cattle
were driven in the direction of the border. When the witness
approached him, appellant ran away. This incident took place at
around 17h00 on 13 September 2008 and they were about 80 m apart.
Nembungu testified that he had an unobstructed view of the appellant
who was known to him; also that appellant and the complainant were
residing in the same area.

[11] Counsel for the appellant
submitted that it is not clear from the evidence whether the sun had
already set the time when they met, and whether the appellant had a
clear view of the appellant when he allegedly identified him. The
submission is conjectural and amounts to nothing more than
speculation, not supported by the evidence adduced at the trial
because Nembungu said it was 17h00 in the afternoon (not 19h00
as counsel stated in her heads) and that there was nothing that
obstructed his view. He was adamant that he had not only identified
the complainant’s cattle over the same distance, but also the
appellant. The appellant was well known to him and they even spoke to
one another when he asked the appellant about the cattle and his
reply about taking the cattle home.

[12] When
objectively considering the evidence set out above, I am unable to
come to a different conclusion than the court a
quo as
to the veracity of the witness Nembungu, albeit him giving single
evidence. It is well established that a court on appeal will not
easily interfere with credibility findings made by the trial court
and only where an irregularity or misdirection was committed by that
court, would such interference be justified. See S
v Slinger¹
at p 10 where the
Full Bench said:

‘It is trite
law that the function to decide on acceptance or rejection of
evidence, falls primarily within the domain of the trial court.

In this case, no such irregularities
or misdirections have been proved or are apparent. The findings on
credibility by the trial court must therefore stand.’

See also R
v Dhlumayo and Another²
where the court
laid down principles which should guide a court of appeal where an
appeal is purely based upon fact.

[13] As mentioned,
the appellant elected not to give evidence during the trial, despite
there being direct evidence against him for committing the offence
under consideration. Where the court in such instance on the one hand
must be mindful of an accused’s constitutional right to remain
silent, it must on the other hand decide what weight should be given
to the uncontroverted evidence implicating the accused, and in this
regard the court in S
v Nangombe³
stated the
following at 280E-H:

‘It
was not contradicted because appellant chose to remain silent which
he was entitled to do. But his failure to testify strengthens the
State case against him.

“On
the other hand it is right to bear in mind that there is no
obligation upon the accused to give evidence in any sense except that
if he does not do so he takes a risk. The extent of that risk cannot
be analysed in terms of logic: it depends on the correlation and
assessment of the factors by the trier of fact, that is, on his
judgment.”

Per
Schreiner JA in R v
Ismail 1952 (1) SA
204 (A) at 210.

In
this case there was direct and circumstantial evidence, implicating
appellant in the commission of the crime. The risk was therefore
greater than in cases where guilt is sought to be proved by
inference. While the appellant has a constitutional right to silence,
the direct evidence against him could not be ignored.

“But
the situation is different where there is direct evidence of the
commission of the offence. In such a case the failure to testify or
the giving of a false alibi, whatever the reason therefor - ipso
facto
tends
to strengthen the direct evidence, since there is no testimony to
gainsay it and therefore less occasion or material for doubting it.”

Per
Holmes JA in S v
Nkombani and Another 1963
(4) SA 877 (A) at 893G.’

[14] An accused’s constitutional
right to silence cannot prevent logical inferences drawn from the
proved facts: the circumstances of a case may be such that a prima
facie case, if left uncontradicted, becomes proof beyond
reasonable doubt. The present case falls into this category, and in
our view, the assessment of the evidence by the court below cannot be
criticised. Consequentially, the identity of the appellant as the
person found in the circumstances described by the witness Nembungu,
despite him giving single evidence, was duly established; hence,
there is no merit in this ground of appeal.

[15] Although not raised in the notice
as a ground of appeal, Ms Kishi submitted that, at the close
of the State case the court failed to properly explain to the
unrepresented appellant his rights and therefore he was unable to
take an informed decision. This explains, so it was argued, why the
appellant elected to remain silent, not appreciating the consequences
of his decision.

[16] What was explained to the
appellant is apparent from the pro forma (Annexure E) used by the
court during the trial, setting out the rights of an accused at the
close of the State’s case. Appellant was duly informed of his
rights to give evidence under oath or to remain silent; and to call
witnesses. It was further explained to him that if he chose to remain
silent, the court would decide the case solely on the evidence
presented thus far, and that his plea explanation did not constitute
evidence as it was not given on oath. The appellant thereafter
indicated that he understood the explanation and opted to remain
silent. From the foregoing it is clear that the appellant knew what
options were open to him and the consequences of each option.
Although it would have been prudent to also include in the
explanation that, should he elect to remain silent, it may adversely
affect his case, I am otherwise satisfied that the explanation of the
appellant’s rights satisfies the demands of a fair trial.
Accordingly, there is no merit in this submission.

[17] I now intend
dealing with the remaining grounds all in one. Constable Nembungu
found the appellant driving
three head of
cattle, the property of the complainant, towards the border which was
a mere 80 m from there. These cattle belonged to the complainant who
at the time was unaware that his cattle were removed from his
custody. The place where the appellant was found with the cattle is
approximately 2-3 km from where it was kept by the complainant.
Against this background it is not exactly clear to me what the
appellant means when he contends that ‘the State failed to
prove that there was actual contrectatio from the complainant of the
alleged stolen cattle’ and that he was not found in ‘actual
possession’ of the cattle.

[18] It is well
established law that appropriation (contrectatio) as a description of
the act no longer requires the physical handling or touching of a
thing before it can be stolen.⁴
Appropriation
consists in an act in respect of which the offender (a) deprives the
lawful owner or possessor of his property; and (b) himself exercises
the rights of an owner in respect of such property. When applying
these principles to the present facts, there can be no doubt that
appropriation by the appellant of the complainant’s three head
of cattle, when removing them from his control by driving them away
towards the Angolan border, was duly proved. The evidence further
clearly shows that this act was intentional and unlawful. When found
driving the cattle away, the appellant had already deprived the
complainant of his control over the cattle in that he had assumed
physical control or took possession thereof, whilst exercising the
rights of an owner over the said cattle through his actions. The
appeal on the remaining grounds, thus, cannot succeed either.

[19] In view of the abovementioned I
conclude that there are no prospects of success of appeal against
conviction, and the application for condonation is accordingly
refused.

[20] The matter is struck from the
roll.

________________

JC LIEBENBERG

JUDGE

________________

MA TOMMASI

JUDGE

APPEARANCES

APPELLANT F Kishi

Of Dr Weder, Kauta & Hoveka,
Oshakati,

RESPONDENT D M Lisulo

Of the Office of the
Prosecutor-General, Oshakati