Makanda v S (CA 08/2009) [2009] NAHC 69 (22 May 2009);

Group

Full judgment
CASE NO

CASE NO.: CA 08/2009

IN THE HIGH COURT OF NAMIBIA HELD

IN OSHAKATI


In the matter between:


SECILIA NDEUYA MAKANDA APPELLANT


and



THE STATE RESPONDENT


CORAM: SHIVUTE, A.J et LIEBENBERG, A.J


Heard on: 22 May 2009

Delivered on: 22 May 2009

Reasons released on: 17 June 2009

REASONS FOR JUDGMENT :


SHIVUTE, A.J: [1] The appeal was argued before us on 22 May 2009. The Court having heard oral arguments from both counsel, upheld the appeal and set aside both the conviction and sentence imposed by the court a quo.


[2] In October 2007 the Appellant stood arraigned in the Regional Court of Oshakati on one count of Theft of a motor vehicle. It was alleged that between December 2006 and 18 April 2007 at Oshakati the Appellant did unlawfully and intentionally steal a motor vehicle to wit a Toyota Corolla 2000 model, engine No I N Z A O74462 chassis no. 0010420 the property of or in lawful possession and control of Jose Alberto Musita.


[3] She pleaded not guilty to the charge. At the end of the trial the State successfully secured her conviction. She was sentenced to 3 years imprisonment, 2 years of which is suspended for 5 years on condition that the accused is not convicted of theft committed during the period of suspension. She now appeals against both conviction and sentence.


[4] Mr. Namandje argued the appeal on behalf of the Appellant and Mr. Sibeya argued on behalf of the Respondent.

At the commencement of the appeal the Respondent raised points in limine to the effect that:


  1. Prosecutor’s opening statement; paragraphs 6-1 to 6-3 of the Appellant’s main heads of argument contain complaints and a criticism to the prosecutor’s opening statement. It was submitted that Appellant’s notice of appeal contained no grounds which addressed the prosecutor’s opening statement.


  1. The black Toyota Corolla: it was submitted that there was no ground in the notice of appeal on record which addressed the finding of the learned Magistrate that there was a first black Toyota Corolla car given to the Appellant which was returned to the Respondent”.

[5] Although the two issues raised as points in limine above were not expressly mentioned in the grounds of appeal, we are of the view that they are covered by the general ground of appeal to the effect that the trial court erred in finding that the State had proved theft of the motor vehicle and the intention to steal it beyond reasonable doubt.


[6] The following grounds of appeal were advanced on behalf of the Appellant:




AD conviction


1. The learned magistrate erred in finding that the State had proved beyond a reasonable doubt:


1.1. Theft of a motor vehicle

1.2. The intention to steal


2. The learned magistrate erred in finding that the state had proved beyond a reasonable doubt that the Appellant had the requisite intention to steal a Toyota Corolla currently bearing a registration number N 6795 SH.


2.1. More particularly the learned magistrate erred in finding that the State had proved beyond a reasonable doubt that the theft of the Toyota Corolla was committed between December 2006 and 18 April 2007.


2.2. The learned magistrate erred in not having regard to the evidence of Michael Joao Kondima that he personally delivered the motor vehicle to the Appellant during 2006, and that he only reported the matter to the Ohangwena Police Station during April 2007 after he was informed by the person (who was never called to testify), that the Toyota Corolla was registered in the name of the Appellant.


2.3.The learned magistrate further erred in not having regard to the evidence of Michael Joao Kondima that he went to lay a complaint at the police station because he wanted the Toyota Corolla motor vehicle returned back to him after he found the Appellant in the company of another man at one of the service stations in Ondangwa and the Appellant pretended that she does not know him.


3. The learned magistrate erred in accepting the version of the State witnesses to the effect that the Appellant was given the Toyota Corolla motor vehicle to use and not as her sole and exclusive property.


3.1.The learned magistrate failed to weigh or weigh properly the probability of the truthfulness of the evidence of the Appellant and Ndeenda Makanda, that when Michael Joao Kondima delivered the Toyota Corolla motor vehicle together with the documents pertaining to the purchase and previous ownership of the said motor vehicle and informed her that it is her car.


[7] The learned magistrate erred in finding Michael Joao Kondima who was a single witness, as credible despite the contradictions in his testimony”.


[8] The Appellant also raised grounds of appeal against sentence, but because of the conclusion we have arrived at in this judgment, it is not necessary to deal with those grounds.


[9] The evidence presented at the trial, in brief, is that the investigating officer Paulus Amunyela Avelinus received the case docket on 24 April 2007 where the complainant reported that he had given a motor vehicle to his girlfriend, the Appellant in this matter, to use for going to church but when he wanted it back she refused to return the vehicle. She gave several excuses such as that the vehicle was with the brother in Oranjemund or that she had gone to Tsumeb.

The investigating officer confronted the Appellant on 30 April 2007 to bring the vehicle; the Appellant stated that the vehicle belonged to her as it was given as a gift to her by her boyfriend, the complainant.


[10] The Appellant insisted that the vehicle belonged to her. Warrant officer Avelinus found out that the vehicle was registered in the name of the Appellant on 18 April 2007. The investigating officer did not arrest the Appellant immediately because he wanted to give her time to return the vehicle


[11] Joao Michael Kondima also known as ‘Bobo’, a business partner of the complainant, testified that on a Saturday he was given the vehicle in question by the complainant to take to the Appellant so that the Appellant could use the vehicle to go to church and that the witness would pick up the vehicle on a Monday. He could not remember the date when he took the vehicle to the Appellant. Joao testified that the vehicle belonged to their business. On a Monday he went to the Appellant’s house to fetch the car but he did not find it there. He then telephoned the complainant that the vehicle was not there.

The situation remained like that. One day the witness and the complainant went to the Appellant’s house, they were driving a Land cruiser. When they arrived at the Appellant’s house they did not find her. Later on she came driving the motor vehicle in issue. Before she handed over the car to them she said she was first going to pick up her sister. She drove the car up to a turn going to Game Shopping Center and it broke down. The witness and the complainant took the car for repair to a certain garage in Ongwediva. The witness does not know for how long the vehicle stayed at the garage but what he was sure of is that after it was repaired it went back to the Appellant.

On 14 April 2007 the Appellant telephoned the witness to come and get this “shit” car as it was giving her problems, but when he arrived at the Appellant’s house, she was not there. The witness enquired about the vehicle, the Appellant told him that the vehicle was with her brother in Tsumeb, but within a short period of time he saw the car passing in Ondangwa. Through cross – examination he testified that the vehicle was given to the appellant during 2006 and that when he took the vehicle to the Appellant to go to church, that was the first time she was ever given the vehicle. The witness testified further that the last payment to the previous owner was done on 8 June 2006. Through further cross – examination he said documents pertaining to the registration of the car were kept in the vehicle itself, following the incident when the complainant had problems with the police at Oshivelo in connection with the car. The documents remained in the vehicle even when it was handed over to the Appellant and when the vehicle was taken to the garage. The witness further testified that the complainant gave the Appellant a black Corolla to drive and that it was returned. The witness was unable to deny whether the vehicle in issue was given as a gift to the Appellant.


[12] Complainant Jose Alberto Musita Morera testified to the effect that he had an intimate relationship with the Appellant. He stayed in Oshikango and she stayed in Oshakati. Complainant used to travel from Oshikango to Oshakati to take the Appellant to church at the Appellant’s village at Ongenga, because of this long distance he taught her how to drive until she got a driver’s licence. That was when he said to her he would offer her a car every Saturday to go to church on Sunday and he would fetch it on Monday. He testified further that on the date his relationship with the Appellant ended he found her with a new boyfriend and the Appellant denied in the presence of her alleged new boyfriend that she knew him (complainant). After she said she did not know him, he demanded that Appellant return the car, but she did not. That is why he happened to go to the police station at Ohangwena. (This date happens to be 14 April 2007). Complainant further gave evidence to the effect that he gave the vehicle in issue to the Appellant on a certain Saturday during 2006 but he could not remember the month. He stated furthermore that they bought a car from a certain Malakia to assist them with their work. The car could not be registered in his name because there was still an amount of N$18,000.00 outstanding and he just did not have enough time to have it registered. The documents for the car were kept in the car, even when the car was given to the Appellant. He denied to have given her the documents.


[13] He continued to state that the day they came to collect the car she drove it. On a Monday they were supposed to get the car, but it developed a problem somewhere near the traffic lights. So the car was towed from there to the garage. The car remained in the garage for approximately 2 months because of the parts which were not freely available here. So again after the repair of the car, they went to Windhoek. Again Appellant asked for the car for her to go to church. This evidence is contrary to what Mr. Kondima said on this aspect, namely that he came to get the car on a Monday but could not find it.

The witness testified further that the first time the Appellant was given the car, it experienced a gearbox problem and when on the second occasion the Appellant got the car, she never returned it until the case was opened with the police. The vehicle experienced problems for the first time in November 2006. When it experienced problems, the complainant was driving the vehicle himself. When the vehicle came out of the garage, the Appellant needed the vehicle again and the complainant delivered it to the Appellant himself during November 2006. The complainant on his own version did not give a specific date to the Appellant as to when the vehicle should be returned, contrary to the evidence of Mr. Kondima and the opening statement of the prosecutor.


[14] Complainant denied having given the Appellant the car in issue as a gift. He also denied that he had given a black Toyota Corolla to the Appellant for use. However, he does not dispute that he promised to give the Appellant a car as a gift.


[15] For the defence, the Appellant confirmed that she had a love relationship with the complainant and that he had given her a car. It was a black sports car but its documents were not in order. It was also destined for Congo Brazaville. Complainant allegedly told the Appellant that she would be able to register the car in her name as she was Namibian. Appellant rejected the car and that was when she was given the Toyota Corolla in issue. The Respondent contended that this evidence was not put to the State witnesses. This Court does not agree with the Respondent because it was actually put to the complainant that at one stage he gave a black Corolla sports car to Appellant to use except for the fact that the car was destined for Congo Brazaville; that complainant told the Appellant that she could register the car and that she rejected the car as its documents were not in order. (See p 158 pr 3-4 of the typed record).


[16] The Appellant further testified that when the complainant brought the car to her he said it was a gift; he suggested that she must take him to her parents as he was going to marry her. The Appellant confirmed that she had been a girlfriend to the complainant since 2005 until 2007 when she was called by the Namibian Police and informed that she had allegedly stolen the vehicle concerned. She informed the police that she must be given a court date so that she could relate to the court that the vehicle was given to her as a gift by the complainant. She stated that she had the vehicle concerned for about a year before allegations of theft were levelled against her. She was allegedly given the vehicle by the complainant during 2006 as a gift. When the Appellant obtained her driver’s licence in November 2006, she was already in possession of the vehicle. She testified further that during 2006 and April 2007 complainant did not ask for the return of the car.

The Appellant testified that the complainant told her to register the car under her name. However, she could not register the vehicle before 18 April 2007 due to a number of problems that had to be fixed before it could pass a road worthiness test. She went further to say that when the vehicle was brought by Mr.Kondima it was in March 2006 and she denied that that could have been in November/December 2006. The Appellant testified further that the vehicle was returned to her in August 2006 from the garage at Ongwediva.


[17] Alma Kaunapawa Sheya a friend to the Appellant, also gave evidence for the defence. She stated that at the beginning of 2006 the complainant and the appellant met her and complainant told her that he brought a car to the Appellant and showed her the keys and the papers of the car.


[18] Deenda Makanda a sister to the Appellant testified that she was present when the Appellant was given the vehicle’s keys and papers by the complainant. She could however not remember the date.




Judgment of the Court a quo


[19] The Court found that the complainant gave a black Toyota Corolla to the Appellant. The two defence witnesses stuck to the version that the complainant gave the car to the Appellant during March 2006 but it was not put to the complainant that there were witnesses to the hand over ceremony. The court found Bobo to have been a credible witness. It also found that it was improbable that the complainant will give the Appellant a car as a gift and then proceed to show the car’s documents to the Appellant’s friends and sibling. It found that Bobo went once to collect the car and Appellant said the car was with her brother in Tsumeb but shortly thereafter the car was seen passing. The court found that the Appellant denied to have known the complainant in the presence of another person. It was further the findings of the court that the Appellant registered the car knowing that the complainant wanted it back and further that she was a less honest individual.


[20] It was submitted on behalf of the Appellant that the opening statement by the prosecutor that the Appellant was only given the vehicle for two days during December 2006 was not borne out by the evidence of the complainant. These contradictions were material and fatal.


In Sikongo Eino Siwombe vs the State Case number. CA 23/2008, judgment delivered on 22 September 2008 where the court stated in reference to the matter of S v D 1995 (1) SACR 173 (T) at 179 D – G at page 9 where it stated:-


The learned magistrate should have had regard to the discrepancies between the opening address of the state prosecutor and the evidence of the complainant. In casu the creditworthiness of the complainant was under severe scrutiny. Such a discrepancy is one that should have been given due weight and considered cumulatively to the rest of the other evidential pitfalls which were so abundant in this case. In the absence of any cogent explanation, the bold assertion by the prosecutor that the complainant ‘herhaaldelik gesodomiseer is …en dat dit die beskuldgde is wat hierdie handeling uitgevoer het (freely translated: continuously sodomized … and that it was the accused who perpetrated the act’), must be deemed to emanate from the complainant, who was the only direct witness on this aspect of the state’s case”.


Thus, it was submitted, given the discrepancies between the State prosecutor’s opening statement in terms of Section 150 and the evidence, the court a quo in view of many other improbabilities and contradictions ought not to have convicted the Appellant.


[21] It was further submitted that there was a lack of analysis of evidence and there was further lack of compelling and convincing reasons why the evidence of the Appellant that the vehicle was given to her as a gift, was not accepted. The correct approach in assessing the evidence of the State and the evidence of the accused person is carefully, correctly and clearly set out in the matter of S v Jaffer 1988 (2) SA 84 at page 88 – 89 where the following was stated by the court:-


It is not however the correct approach in a criminal case to weigh up the State’s version, particularly where it is given by a single witness, against the version of the accused and then to accept or reject one or the other on the probabilities”.


[22] Mr. Namandje submitted again that there were adequate probabilities on the record, and more so in view of improbable evidence of the complainant, replete with contradictions which confirm the fact that the version of the Appellant could reasonably possibly be true that the vehicle was given to her as a gift. There are equally good reasons to infer that the complainant only changed his mind upon finding the Appellant with another man. In this respect the learned magistrate clearly got the approach wrong. There was no proper analysis of the Appellant’s evidence as it is required. Therefore the Court should look at the evidence afresh to come up with its own decision on facts, even if it were to be said that there could be a serious suspicion that the complainant could not have given the Appellant the vehicle, that is unfortunately, not the test in criminal cases. It was therefore submitted that the State did not, on the evidence tendered at the trial prove beyond reasonable doubt that the Appellant stole the vehicle in question. The reasons being that the vehicle was given to the Appellant as a gift, as corroborated by two witnesses. The evidence of the Appellant’s witnesses was not rejected or was not considered. The complainant, as to whether he gave the vehicle as a gift or not, was a single witness and his evidence ought to have been approached with caution.


[23] On the other hand it was submitted by counsel for the State that in the event that their point raised in limine was not accepted, the only attack on the opening statement of the prosecutor by the Appellant was contained in paragraph 6.1 of their main heads of arguments, in that the prosecutor stated that the vehicle was given to the Appellant only for two days during December 2006, whereas this was not borne out by the evidence of the complainant. It was pointed out that the prosecutor clearly stated that the Appellant was given a car to use for a period of two days and thereafter return it. Besides, the complainant himself testified that he decided to give the Appellant the car every Saturday for her to go to church on Sundays and that he will fetch the car on Mondays, which according to counsel, meant that the Appellant indeed had the use of the car for two days.


[24] We respectfully see little merit in this argument. Surely even if it was true that complainant had given the vehicle to the Appellant every Saturday for her to go to church on Sundays and the car would be collected on Mondays, this does not tally with the opening statement of the prosecutor which said Appellant was only given the vehicle for two days.


[25] It was again submitted by the State that the evidence must be evaluated to determine the guilt of the offender. The State must satisfy the court, not that each separate item of evidence is inconsistent with the innocence of the accused but that the evidence taken as a whole is beyond reasonable doubt inconsistent with such innocence. He referred the court to the case of R v De Villiers 1944 AD 493, 508 -9 and other authorities.


[26] As far as the complainant being a single witness is concerned, Mr. Sibeya submitted that the complainant was a single witness on whether or not he gave the car as a gift to the Appellant. The evidence of a single witness should be treated with caution. In S v Sauls 1981 (3) SA 172 (A) 180 it was said that there is no rule of thumb test formula to apply when it comes to the consideration of the credibility of the single witness. The trial court should weigh the evidence of the single witness and should consider its merits and demerits and having done so, should decide whether it is satisfied that the truth has been told despite short comings or defects or contradictions. Furthermore, citing the case of S v Webber 1971 (3) SA 754 (A) he submitted that evidence ought not necessarily be rejected because the single witness happens to have an interest or bias to the accused, as the correct approach is to assess the intensity of the bias and to determine the importance thereof in the light of the evidence as a whole.


[27] As to when a person could be viewed as a single witness, if some corroboration is to be found from evidence of other witnesses, a witness on an incident that only he testifies, can no longer be regarded as a single witness. It was submitted that taking into account the evidence in its totality, complainant was not a single witness. S v Snyman 1968 (2) SA 582 (A) 586-7.

We are of the view that what counsel for the Respondent submitted is trite law. However in this case there has not been corroboration as to whether the car was not given as a gift by the complainant to the Appellant because Mr. Kondima was unable to deny whether the vehicle was given as a gift or not. The complainant as far as the issue of giving the car as a gift or not is concerned, could be regarded as a single witness.


[28] It was further argued on behalf of the State that failure to cross- examine or dispute the evidence of State witnesses on the issues mentioned above in the summary of evidence leads to a conclusion that such is admitted as it is trite that undisputed evidence shall be deemed to be accepted by the other party. Equally it was submitted that failure to put one’s case to the witness to reply thereto is an indication of fabrication. Several authorities were quoted in this regard.


[29] As far as credibility was concerned it was submitted that credibility findings on Bobo and the Appellant in particular should not be interfered with as there were no convincing reasons by the Appellant as to why such findings should be disregarded. It was further submitted that in criminal cases it is for the State to prove the guilt of an accused beyond a reasonable doubt, and not for the accused to prove his innocence; proof beyond a reasonable doubt does not mean proof beyond all the doubt; or that the prosecution should eliminate all hypothesis which are inconsistent with the accused’s guilt or which may be consistent with his innocence.

It was again the submission of the State that the Appellant’s version that she was given the car as a gift could not be said to be reasonable possibly true. This was so especially when one had regard to the following: that the car in question was bought by the complainant together with his business partner for the business or work purposes; that it was given to the Appellant to use to go to church; that its documents were kept in the car; that when the Appellant was asked to return it back to the owner she gave several excuses; that the material aspects of the State witnesses’ testimony were not disputed; and that the material part of the Appellant’s evidence and that of her witnesses, were not put to the State witnesses. It was further submitted that the Appellant was correctly convicted and that the appeal against conviction should be dismissed.


[30] The approach of a court to determine in a criminal trial whether an accused should be convicted has been stated in R v Difford AD 370 at 373:-


No onus rests on the accused to convince the court of the truth of any explanation he gives if he gives an explanation even if that explanation is improbable the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal”.


[31] It is also trite law that a court of appeal will be slow to interfere with findings of fact and credibility of a trial court, unless it finds the reasons by the trial court’s factual findings unsatisfactory, unmistakably and no proper advantage taken from having seen or heard the witnesses. See S v Hepute 2001 NR 242 (HC) at 243.


[32] In this case it was the evidence of the State that the car in question was bought for business purposes. This evidence could not have been accepted because there is evidence from the Appellant that she kept the vehicle in issue for about a year. There is also no proof before the court a quo that the car belonged to the business as it was bought by the complainant and not in the name of the business.

The magistrate did not advance any reasons for having concluded that the complainant had previously given a black Toyota Corolla to the Appellant as a gift, despite the complainant’s evidence to the contrary. The Court a quo could have only made the findings on the basis of the Appellant’s evidence but then in the same breath rejected the evidence of the Appellant when she said she was given the vehicle in issue which was allegedly stolen. On the basis of this misdirection this Court is at large to look at the evidence afresh.


[33] The complainant testified that: The day we came for the car, as I said I gave the car to her on Saturday, Sunday she drove the car. Monday we were supposed to get the car, this car stopped or it was having a problem somewhere near traffic lights or robots as they were called somewhere there, so the car was pulled from there and it was taken to the garage. The car remained in the garage for may be 2 months or 2 weeks because of the parts which were not frequently available here. So again after the repair of the car, we went to Windhoek again. She asked for the car for her to go to church”. This evidence contradicted the evidence of Mr. Kondima that he came to get the car on a Monday but could not find it. The complainant testified that the first time the Appellant was given the car, the car experienced a gearbox problem and when on the second occasion, the Appellant got the car, she never returned it until the case was opened with the police. The complainant again testified that when the vehicle experienced gearbox problems for the first time in November 2006, the complainant was driving the vehicle himself. This evidence is contradicting the evidence of Mr. Kondima when he said the Appellant was driving the vehicle.

Although Mr. Kondima and the prosecutor in his opening statement said the vehicle was given to the Appellant for two days only, complainant testified that when the vehicle came out of the garage, the Appellant needed it again and the complainant delivered the vehicle himself to the Appellant during November 2006. According to his own version he did not indicate the date to the Appellant as to when the vehicle should be returned. These are some of the contradictions which the court a quo did not consider; although not all of them are material.

The State alleged that the complainant repeatedly asked for the return of the car. This could not be evidence of theft because when the car broke down it was returned to the Appellant after it was repaired. There has been no serious effort on the part of the complainant to demand for the car to be handed back up to the stage when the relationship between complainant and the Appellant broke up.


[34] The court a quo had misdirected itself by making a finding that the complainant made a good impression as “a man” and not as a witness. It also misdirected itself by finding that the complainant was not an “honest individual”. The court a quo thus, did not assess the Appellant as a witness but as an individual, which amounts to a serious misdirection.


[35] The court a quo again misdirected itself by finding that it was improbable that complainant would give the Appellant the car as a gift and went on to show the motor vehicle documents to the accused’s friend and sibling. This might be improbable but the test is, whether there is a reasonable possibility that the Appellant’s evidence may be true. In applying that test one must also remember that the court does not have to believe her story still less has it to believe it in all its details. It is sufficient if it thinks there is a reasonable possibility that it may be substantially true. R v M 1946 AD 1023 at 1027.


[36] It was further decided in S v Kubeka 1982 (1) SA 534 (w) at 537 FH, where Slomowitz A.J said in this regard to the accused’s story:-


Whether I subjectively disbelieve him, is however, not the test. I need not even reject the state case in order to acquit him. I am bound to acquit him if there exists a reasonable possibility that his evidence may be true. Such is the nature of the onus on the state”.


Again the court rejected the evidence of the defence and accepted the evidence of the State without giving cogent reasons why the evidence of the defence was rejected. It is the opinion of this Court that the court a quo failed to analyze the evidence before him and evaluate it to determine whether the charge has been proved beyond reasonable doubt.


[37] The court a quo has failed to determine at what point the vehicle in issue was stolen. Was it when the vehicle was registered? Was it when the Appellant allegedly refused to return it by demand?


[38] If one looks at the evidence, the vehicle in question was given to the Appellant again after it came from the garage. Complainant never asked for the vehicle to be returned, he only demanded for the vehicle to be returned when he found the Appellant with the alleged new boyfriend on 14 April 2007 and the Appellant allegedly denied that she knew him. To quote his own words he stated: “Then after she said she does not know me in that way, I said fine, bring back the car, but she did not! That is why I happened to go to the police station in Ohangwena”. If one analyzes what the complainant said above, it becomes clear that the vehicle was only reported stolen on 14 April 2007 when the Appellant was in the company of the alleged new boyfriend and allegedly denied to have known the complainant and after she failed to return it on demand.


[39] One could conclude that the alleged theft only occurred after the relationship became sour, that is when the complainant demanded to have the car back. The complainant’s evidence as to whether he gave the vehicle as a gift or not, was evidence of a single witness and his evidence ought to have been approached with caution.

This Court is of the opinion that the court a quo did not treat the complainant’s evidence with caution given the fact that there has never been proper analysis, assessment and evaluation of the facts. The court a quo did not consider the evidence of the other defence witnesses and rejected the evidence of the Appellant without giving cogent reasons.

For the foregoing reasons this Court is inclined to find that theft has not been proved beyond a reasonable doubt and that the Appellant’s evidence in the circumstances, could reasonably possibly be true.


[40] There is a reasonable possibility that the Appellant was given the car together with its documents as a gift by the complainant. The Appellant by registering the vehicle in her name in the circumstances where the vehicle might have been given as a gift, does not amount to theft. She may well have registered the vehicle in her name in order to strengthen her ownership of the vehicle.


[41] It was for these reasons that we allowed the appeal and made the order referred to above.








__________________________

SHIVUTE, A.J.



I agree




__________________________

LIEBENBERG, A.J







ON BEHALF OF THE APPELLANT Mr. Namandje.


Instructed by: Sisa Namandje & Co Inc.



ON BEHALF OF RESPONDENT Adv. Sibeya

Instructed by: The Prosecutor - General.

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