CASE NO.: CA 103/2010

IN THE HIGH COURT OF NAMIBIA:

NORTHERN LOCAL DIVISION

HELD AT OSHAKATI

In the matter between:

MBINGE TJIPETA
…............................................................................APPELLANT

and

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

CORAM: LIEBENBERG, J et
TOMMASI, J.

Heard on: 30 March 2012

Delivered on: 02 April 2012

APPEAL JUDGMENT

LIEBENBERG,
J.: [1]
Appellant was unrepresented when arraigned in the Regional Court
sitting at Opuwo on a charge of stock theft, read with the provisions
of the Stock Theft Act¹
(‘the Act’)
involving thirty-five head of cattle valued at N$105 000. Despite
having pleaded not guilty to the charge he was convicted and
sentenced to twenty years’ imprisonment. He now appeals against
both his conviction and sentence.

[2] The appellant
is now represented by Mr Aingura,
appearing amicus
curiae, and
we are indebted to him for the assistance provided to the Court. Mr
Lisulo
represents
the respondent.

[3] On the 31^st
of March 2008 the
appellant was convicted and sentenced, but only filed his notice of
appeal and “condonation letter” on the 29^th
of January 2009,
which is clearly out of time. Subsequently the appellant on the 19^th
of March 2012, with
the assistance of counsel filed and amended notice of appeal,
‘substituting’ the notice initially filed by the
appellant in person. The grounds raised in the initial notice are
thus abandoned and deserves no further attention. Condonation is
sought for the late noting of the appeal and appellant on oath
explains the delay saying that due to the notice of appeal not
conforming to the Rules of Court²,
an amendment was necessitated.

[4] In order to be
able to amend a notice of appeal, there must at least be valid
grounds in the notice itself, because a notice of appeal in which no
grounds are set out on which the appeal is based, is not a valid
notice and is as such void. Regarding the amendment of notices of
appeal this Court in Andreas
Mumangeni³
had the following
to say:

“[10]
It has been said that a notice in which no grounds were mentioned
“was
not a valid notice of appeal, and as such it was no notice of appeal
at all” (Hashe
v Minister of Justice and Another
1957
(1) SA 670 (C)) and a nullity (S
v Maliwa)
(supra)⁴.
Also that once the notice was found to be a nullity, it remains a
nullity and cannot be revived by condonation of the non- compliance
with the rules or by amendment of the defective notice (S v Molebatsi
v Federated Timbers (Pty) Ltd
1996
(3) SA 92 (B) at 94-95D and 96F).

[11]
There can be no doubt that whereas appellant has not stated any
ground of appeal in his notice,
that the notice was not a valid notice of appeal and therefore was a
nullity. From the authority cited above it is furthermore clear that
an invalid notice cannot be revived by condonation or by amendment,
for reason that there is no foundation on which appellant’s
case is built. In order to ‘amend’ something, there at
least has to be ‘something’, which in this instance,
there is certainly not. What the appellant should have done once he
decided to withdraw his appeal against conviction, was to withdraw
the entire appeal and file a fresh notice of appeal under Rule 67
together with an application for condonation for the late filing
thereof.”

[5] From the five grounds enumerated
in the appellant’s notice of appeal I am satisfied that four of
these clearly do not satisfy the requirements of Rule 67 and must be
struck. The second ground raised reads: “The learn
magistrate fail/erred to take my plea into account adequately that
the complainer has given me the mention stolen cattles.” (sic)
When considering whether or not this ground satisfies the rules, the
Court bears in mind that the appellant is a lay person and would
therefore not be able to draw his notice by using legal terminology.
It is however clear that what the appellant means is that the trial
court failed to give due consideration to his defence, namely, that
the cattle in question were given to him and that he had not stolen
same. Judging from the magistrate’s statement it is clear that
the magistrate interpreted the ground of appeal in the same manner
and responded thereto accordingly. In view thereof, I am satisfied
that there is one valid ground of appeal on which the notice could be
amended; hence, the amendment is proper and the grounds raised ought
to be heard.

[6] The following grounds appear from
the amended notice of appeal:

Ad Conviction:-

• 
  The magistrate erred and/or
  misdirected himself by adopting the wrong approach in analysing the
  evidence by rejecting the appellant’s evidence on the basis
  that the complainant was a reliable and credible witness (grounds
  one and two taken as one as it amounts to the same thing);

  
  

• 
  The magistrate erred by convicting
  the appellant of theft of 35 head of cattle valued at N$102 000.00

  
  

Ad Sentence:-

• 
  In sentencing the magistrate did not
  exercise his discretion judicially, alternatively failed to exercise
  such discretion properly by sentencing the appellant to twenty
  years’ imprisonment;

  
  

• 
  The magistrate erred in finding that
  there were no substantial and compelling circumstances present.

  
  

[7] Turning to the application for
condonation, respondent contends that appellant’s explanation
on oath for the delay in the circumstances is reasonable; however,
that condonation will only be granted if there are reasonable
prospects of success on appeal. We are in agreement and the appeal
was accordingly heard on the merits.

[8] After pleading not guilty the
appellant disclosed his defence by explaining that he received from
the complainant first one (1) head of cattle, then another
twenty-five (25) and again seven (7); which are the same cattle he
stood charged with. He further said that he only thereafter realised
that the first one, the seven and another three (3) head of cattle
out of twenty-five, did not belong to the complainant. Accordingly,
he was surprised to have been reported by the complainant for having
stolen the cattle.

[9] The State led the evidence of the
complainant only; the evidence not being complicated and amounts to
the following: The complainant, being 67 years of age, testified that
prior to the 27^th of April 2006 he owned forty-eight (48)
head of cattle of which first twenty-eight (28) and thereafter a
further seven (7) went missing from his kraal at the cattle post
during the night. He started searching for his missing cattle and of
the forty-eight, he at first only recovered a few. He then reported
the matter to the police. Subsequently and acting on information
received from members of society, the complainant departed for
Orotjitombwa village and came to the homestead of the appellant who
was present, together with his parents. Seven of the complainant’s
cattle were found in the kraal and another one in the field.
Complainant testified that the appellant was polite and when asked by
him about the cattle, he admitted that he was the one who stole them.
Appellant also informed him that the rest of the cattle were at
Okambwende (which appellant confirmed in his testimony). Complainant
did not accompany the appellant and others who went there to check on
the cattle. A further twenty-eight cattle were recovered and the
total value of the cattle stolen, according to the complainant, was
N$105 000, valued at N$3 000 each. He was able to identify the cattle
on his ear/brand mark. Complainant was adamant that he had not known
the appellant prior to him meeting the appellant at his place in
search of his missing cattle, and denied having given the appellant
any of his cattle. Under cross-examination he conceded that one of
the cattle did not belong to him, but to a certain lady called Selma,
who suggested to the complainant that their cattle (for purposes of
the trial) could be put together, totalling the twenty-eight head of
cattle found at Okambwende.

[10] Appellant elected to testify in
his defence and maintained that he was given thirty-five head of
cattle by the complainant. He further added that amongst these cattle
given to him, there was the one that belonged to Selma and three more
which belonged to other people. Also, that the cattle were given to
him, being a family member, and that he received the first one
already during 2001. As regards the brand marks, appellant said that
those on the cattle in question differed from what the complainant
had testified about. Appellant said they only had ear marks; however,
he never disputed complainant’s evidence in that respect.

[11] The magistrate
in his ex
tempore judgment
correctly found that it was not in dispute that it was the
complainant’s cattle that were found in possession of the
appellant “Except
for one head of cattle where the Complainant indicated that this
cattle belong to a certain Sam”. (sic)
The court then said that the issue in dispute was to consider whether
or not the complainant had given the thirty-four head of cattle to
the appellant. The court found that the complainant was clear in his
evidence that the appellant was unknown to him prior to his cattle
going missing and that he had not given any cattle to the appellant;
hence, it found the complainant’s evidence truthful. Further,
despite complainant being a single witness, the trial court was
satisfied that the State has proved its case beyond reasonable doubt
and convicted the appellant of theft of “35
heads of cattle valued at hundred and two thousand Namibian Dollars
(N$102 000.00)”.

[12] The
magistrate’s reference to thirty-five (35) head of cattle
towards the end of the judgment appears to be an unintentional
mistake as he earlier in the judgment made it clear that one head of
cattle belonged to Sam/Selma and he thereafter referred to the number
of cattle in question, being thirty-four (only). The total value of
the cattle referred to in the judgment also relates to thirty-four
head of cattle and not thirty-five. Thus, despite reference being
made to a number of thirty-five head of cattle in the judgment, I am
satisfied that the court’s intention was to convict the
appellant of theft of only thirty-four head of cattle. This
conclusion is fortified by the magistrate’s notes⁵
which clearly reads
“Guilty
of 34 cattle valued at N$102 000”. Consequently,
this ground of appeal is unmeritorious.

[13] I now turn to consider the first
and only other ground of appeal against conviction, namely, that the
trial court adopted the wrong approach in its assessment of the
evidence, concluding that the complainant was a reliable and credible
witness; whilst at the same time rejecting the appellant’s
version.

[14] The evaluation
of the evidence adduced at the trial as set out in the judgment is
most unsatisfactory and falls short of what can be described as a
well-reasoned judgment. This Court in David
Shilyapeni Protasius v The State⁶
stated that on
appeal, the Court of appeal is not only required to consider the
outcome of the proceedings held in the lower court, but also the
reasons furnished for the conviction or acquittal (as the case may
be) and therefore, such reasons should be properly formulated and
dealt with in the trial court’s judgment, explaining the
credibility findings made by that court. The Court of appeal is then
required to decide whether due consideration was given to the
evidence and whether the trial court has come to the right conclusion
in its assessment of all the evidence; and in order to do that, a
well-reasoned judgment would be most helpful.⁷
However, this Court
as per Maritz, J (as he then was) in Paulus
Nepembe v The State⁸
at p. 12 said:

“[No]
judgment can ever be ‘perfect and all-embracing, and it does
not necessarily follow that, because something has not been
mentioned, therefore it has not been considered’ (see:
S
v De Beer, 1990
NR 379 (HC) at 387I-J, quoting from S
v Pillay,
1977 (4) SA 531 (A) at 534H-535G and R
v Dhlumayo and Others,
1948 (2) SA 677 (A) at 706), …”

[15] In the present case the
magistrate supplemented his reasons on conviction by adding the
following:

“It
is clear from the record as well as the judgment as to how the court
came to the conclusion as to the value of the cattle involved. There
is therefore nothing more to add.”

I am not sure that I fully understand
the learned magistrate’s statement made in response to the
amended grounds of appeal and it seems to me to only refer to para
1.3 relating to the thirty-five head of cattle valued at N$102 000.
Unfortunately no additional reasons were furnished pertaining to the
alleged misdirection in the evaluation of the evidence and the
statement is therefore of little assistance to the Court.

[16] In Rex
v Dhlumayo and Another⁹
at 705-706 Davis,
AJA (Greenberg, JA et
Schreiner,
JA concurring) laid down principles which should guide an appellate
court in an appeal based purely upon fact and for purposes of this
appeal, I find the following relevant and applicable:

“3.
The trial Judge has advantages - which the appellate court cannot
have - in seeing and hearing the witnesses and in being steeped in
the atmosphere of the trial. Not only has he had the opportunity of
observing their demeanour, but also their appearance and whole
personality. This should never be overlooked.

4.
Consequently the appellate court is very reluctant to upset the
findings of the trial Judge.

5.
The mere fact that the trial Judge has not commented on the demeanour
of the witnesses can hardly ever place the appeal court in as good a
position as he was.

6.
Even in drawing inferences the trial Judge may be in a better
position than the appellate court, in that he may be more able to
estimate what is probable or improbable in relation to the particular
people whom he has observed at the trial.

7.
Sometimes, however, the appellate court may be in as good a position
as the trial Judge to draw inferences, where they are either drawn
from admitted facts or from the facts as found by him.

8.
Where there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion is correct; the appellate court
will only reverse it where it is convinced that it is wrong.

9.
In such a case, if the appellate court is merely left in doubt as to
the correctness of the conclusion, then it will uphold it.”

[17] It has also
been said that Courts of Appeal, when applying these principles
(quoted above), must be careful of over-emphasising the advantages
which the trial court enjoyed, “lest
the appellant’s right of appeal becomes illusionary”.¹⁰
I agree.

[18] I already alluded to the absence
of a properly formulated and reasoned judgment in this instance. This
notwithstanding, the Court is still required to determine from the
evidence presented at the trial whether or not the trial court in its
assessment of the evidence committed any misdirection.

[19] The magistrate, and in my view
correctly, identified the only issue in dispute, namely, whether the
appellant was given the thirty-four cattle found in his possession by
the complainant, and whether it was indeed stolen as alleged. The
only person who testified for the State was the complainant who
vehemently denied having done so. The trial court was alive to the
fact that the witness gave single evidence and although this has not
specifically been dealt with in the judgment, it follows that the
court was aware that it had to approach such evidence with caution.
It would appear from the judgment that the court decided the guilt of
the appellant by determining whether he and the complainant were
related and as such have known to one another. In order to decide
this, the court found that the complainant’s evidence was
“clear” on the following: that he did not know the
appellant prior to the incident; that the incident occurred in April
2006; and that no cattle were given to the appellant during 2001.

[20] I do not
consider, for the reasons mentioned infra,
the
trial court to have adopted the correct approach when evaluating the
evidence and on which it came to the conclusion that the State proved
its case beyond reasonable doubt. In S
v Singh¹¹
the Court discussed
the approach of a court where there is a conflict of fact and the
learned judge says the following at 228F-H:

“Because
this is not the first time that one has been faced on appeal with
this kind of situation, it would perhaps be wise to repeat once again
how a court ought to approach a criminal case on fact where there is
a conflict of fact between the evidence of the State witnesses and
that of an accused. It is quite impermissible to approach such a case
thus: because
the court is satisfied as to the reliability and the credibility of
the State witnesses that, therefore, the defence witnesses, including
the accused, must be rejected.
The proper approach in a case such as this is for the court to apply
its mind not only to the merits and the demerits of the State and the
defence witnesses but also to the probabilities of the case. It is
only after so applying its mind that a court would be justified in
reaching a conclusion as to whether the guilt of an accused has been
established beyond all reasonable doubt. The best indication that a
court has applied its mind in the proper manner in the abovementioned
example is to be found in its reasons for judgment including its
reasons for the acceptance and the rejection of the respective
witnesses.” (Emphasis added)

[21] The dictum
enunciated in Singh
has been endorsed
in this jurisdiction in other judgments.¹²
Also what has been
said in Stellenbosch
Farmers’ Winery Group Ltd & Another v Martell ET Cie and
Others¹³
at 14I-J:

“The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities.”

[22] By saying that
the evidence of the complainant was “clear”, I presume
what is meant is that it was truthful and reliable. However, this in
itself would not have justified a conviction without
also considering
the appellant’s version and the probabilities that presented
itself at the trial. The magistrate gives no reasons whatever for his
conclusion (by implication) that the defence witness was an
unreliable witness; also, the judgment is silent as to the
probabilities.

[23] Even though
the trial court, as it would appear from the judgment, misdirected
itself in its approach when evaluating the evidence adduced at the
trial, it does not, in my view, vitiate the conviction.¹⁴
The court did not
misdirect itself on the facts and in such instance the point of
departure for the Court is to accept that the conclusion reached on
the facts, is correct. A Court of Appeal would be slow to disturb the
findings of a trial court based on verbal testimony.¹⁵

[24] The trial court was satisfied
that the complainant’s testimony was the truth when he said
that he was not related to the appellant. I am unable to fault the
court in its finding, despite the appellant’s evidence to the
contrary. On the appellant’s version he was first given one
head of cattle by the complainant because of their relationship.
However, he did not explain why he had been given another
twenty-seven and again eight head of cattle by the complainant. It
seems that it is suggested that this was because they were family;
something I consider to be highly unlikely – even if it were to
be the case – because the complainant only had a total of
forty-eight head of cattle at the time. And, if he knew the cattle
were with the appellant, why would he not go directly to him instead
of reporting his missing cattle to the police? I do not think too
much should be made of the discrepancy in the complainant’s
evidence about him claiming ownership of all thirty-five head of
cattle whilst the one belonged to a certain Selma. He explained that
it was decided between him and the person that for purposes of the
court case, it could be added to the complainant’s number of
cattle. In the circumstances I find the explanation reasonable and in
the light of all the evidence adduced, it would be wrong to conclude
that the witness deliberately tried to mislead the court.

[25] Appellant was silent as to why
he, on his own version, kept those cattle which he knew did not
belong to the complainant but to other people, instead of returning
them to their lawful owners. In any case, those alleged persons were
never identified. The complainant’s evidence is that the cattle
were taken from his kraal at night – something that does not
favour the handing over of a large number of cattle to a family
member. It is further well known that in order to move cattle from
one area to another that it requires authorization from the headman,
accompanied by the required documentation. Again, it would have been
quite easy for the appellant to produce the necessary documentation
to corroborate his version. In view of the cattle having been found
in the kraal of the appellant’s father, his parents would also
have been in a position to confirm the handing over of the cattle to
the appellant; or at least, that they are related to the complainant
as he alleges. Another aspect of the appellant’s version which
I find surprising is that, if the cattle in question were given to
him and became his property, why did he not brand them since 2001 as
he would be required to do, either by custom or the law?

[26] I do not thereby suggest that the
appellant bore the onus and is under the duty to prove his innocence,
but merely whish to point out that in the absence of such evidence
showing otherwise, the appellant’s version is highly
improbable, even if they were related.

[27] The undisputed evidence is that
the appellant, when confronted by the complainant at home and in the
presence of his parents, admitted having stolen the cattle –
the seven cattle in his father’s kraal and a further
twenty-eight kept at Okambwende. This evidence in itself would have
weighed heavily against the appellant in the trial court’s
assessment of the facts and, in my view, correctly so, as he was
under no influence to admit his guilt and has done so freely. The
appellant’s subsequent conduct by pointing out the rest of the
cattle – which he confirmed during his testimony – is
consistent with his admission of guilt.

[28] Unfortunately, from a reading of
the record of proceedings, this Court does not have the same benefit
the trial court had when observing the witnesses in the witness-box
during their testimony, which would have enabled it through their
candour and demeanour, to form an impression about the veracity of
the witnesses.

[29] In the absence
of any serious misdirection committed by the trial court in its
evaluation of the evidence, there is no reason for this Court to
interfere with the court a
quo’s finding.
Having considered the merits and demerits of the State and the
defence cases respectively, and regard being had to the
probabilities, I am convinced beyond doubt that the appellant was
correctly convicted of theft of thirty-four head of cattle. Hence,
there are no prospects of success on appeal against conviction.

[30] I now turn to
consider the appeal against sentence. It is trite law that the
sentence which the trial court imposes on an accused person is in the
discretion of such court. Furthermore, this is a judicial discretion
which must be exercised in accordance with judicial principles.¹⁶

[31] Appellant testified in mitigation
during which he informed the court that he had a wife and small
children; both he and the wife being unemployed; and that he had been
doing casual work. He was not asked by the court as to how many
children he had and their respective ages; neither what his income
per month was. Appellant expressed his concern for his family and
elderly parents if he were to receive a custodial sentence. The
record of proceedings reflects that the State did not prove previous
convictions against the appellant.

[32] In his brief reasons on sentence
the magistrate stated that the appellant was convicted of a serious
offence which was committed out of greed, and continued by reminding
the appellant that the court could deviate from the (then) prescribed
minimum sentence if there are substantial and compelling
circumstances present, and further said: “You had the
opportunity to address Court taking this (sic) circumstances
into consideration but you failed to do so. The Court therefore
could not find any such circumstances in order to deviate from the
prescribed minimum sentence”. (emphasis added) He was then
sentenced to twenty years’ imprisonment.

[33] It appears from the judgment
that, because the appellant was unable to put forward
substantial and compelling circumstances, therefore, the court was
obliged to impose the mandatory sentence of not less than twenty
years’ imprisonment. Bearing in mind that the appellant was
unrepresented and an unsophisticated and illiterate person, there can
be no doubt that he would not have understood the meaning or the
import of the words ‘substantial and compelling’ when it
was explained to him by the court. In any event, it would be wrong of
a court to expect from an accused to place before the court
‘substantial and compelling circumstances’, for these are
no special circumstances. The presiding officer must invite and
encourage the unrepresented accused to put before the court as much
as possible information and facts relevant to sentence in order
for the court to decide whether these
(mitigating and aggravating factors) are substantial, and whether it
compels the court to impose a lesser sentence. The court a
quo’s failure to assist the unrepresented appellant in any
manner and without posing a single question in an attempt to elicit
any further information from the appellant, is a serious misdirection
and one is therefore not at all surprised to see that the trial court
was unable to find any substantial and compelling circumstances in
this case. There is nothing on record showing that the court had
regard to the personal circumstances of the appellant; that he was a
first offender who was trying to support his dependants by doing
casual work; and, that all the stolen cattle were recovered. Each of
these factors ought to have carried some weight and when put
together, in my view, would have constituted compelling circumstances
justifying a lesser sentence than the mandatory sentence ultimately
imposed by the trial court.

[34] In the light
of the striking down of s 14 (1)(a)(ii) and (b) of the Stock Theft
Act, 1990¹⁷
(‘the Act’)
by the Full Bench of this Court in Protasius
Daniel and Another v The Attorney-General and Two Others¹⁸,
setting
aside the mandatory sentences prescribed by the Act, there is no
further need to determine whether substantial and compelling
circumstances exist¹⁹,
justifying a lesser sentence. See: Petrus
Lwishi v The State at
p.5 para [11] – [13].²⁰

[35] Despite the scanty information
the trial court had before it when sentencing, I do not consider it
to be in the interest of justice to remit the matter to the trial
court for sentence, and will proceed with sentencing afresh.

[36] Appellant is a first offender at
the age of twenty-six and the sole provider for his wife and
children. This he is able to do by doing casual work. He also assists
his elderly parents and has expressed his concern for their
well-being should he be given a custodial sentence. Appellant was in
custody pending trial for an insignificant period and I do not
consider it a mitigating factor or sufficient reason to reduce his
sentence accordingly. He has neither expressed any remorse for his
wrongdoing.

[37] The crime
committed is undoubtedly serious and involves theft of thirty-four
head of cattle value at N$102 000. Fortunately the complainant has
suffered no monetary loss as all the cattle were recovered. In the
Lwishi
case
(supra)
I had the occasion to say the following at para [15] and which seems
apposite to repeat.

“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.”

Further at para [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.”

I consider same applicable to the
facts in casu.

[38] Appellant stole almost
seventy-five percent of the complainant’s total number of
cattle and which clearly was not only an act of greed on his part,
but which robbed complainant of his means of life and undoubtedly
would have caused severe hardship upon the elderly complainant, had
he not succeeded in recovering all his cattle. Society, in particular
in a farming community, are forced to rely heavily upon the trust of
their fellow human beings and once that trust has been broken, as in
this case, then its members are entitled to expect from the courts to
impose deterrent sentences; to serve as a warning and deter, not only
the appellant but also others, in an attempt to discourage them as
far as possible, of repeating this type of offence.

[39] Having weighed up all mitigating
and aggravating factors, I have come to the conclusion that the
appellant’s circumstances do not measure up to the seriousness
of the offence and the interests of society; hence, a lengthy
custodial sentence seems inevitable. In determining sentence afresh,
regard must be had to that period of the sentence already served by
the appellant.

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

1. 
   Condonation is granted for the late
   filing of the Notice of Appeal and Amended Notice of Appeal.

   
   

2. 
   The appeal against conviction is
   dismissed.

   
   

3. 
   The appeal against sentence is upheld
   and the sentence is set aside.

   
   

4. 
   Appellant is sentenced to: Fifteen
   (15) years’ imprisonment of which three (3) years’
   imprisonment is suspended for five (5) years on condition that the
   accused is not convicted of stock theft, committed during the period
   of suspension.

   
   

5. 
   The sentence is ante-dated to
   31.03.2008.

   
   

__________________________

LIEBENBERG, J

I concur.

__________________________

TOMMASI, J

ON BEHALF OF THE APPELLANT Mr S
Aingura

LorentzAngula Inc Amicus curiae

ON BEHALF OF THE RESPONDENT Mr D M
Lisulo

Instructed by: Office of the
Prosecutor-General