CASE
NO. CA 09/2005

SUMMARY

KENNEDY
MASULE CHANDA v THE STATE

HOFF,
J et HEATHCOTE, A.J.

23
June 2005

Jurisdiction
– Theft – Accused cannot be charged (in a Namibian court) with
theft of an item which he allegedly stole in Zambia, unless he is in
possession of such item in Namibia.

Jurisdiction
– Prosecutors and magistrates particularly those in jurisdictions
close to the borders of Namibia should study the Supreme Court case
of S v Mwinga 1995 NR 166 (SC)

Evidence
– Hearsay – Meaning of - Oral and written statements by persons
who are not a party to the proceedings or who are not witnesses in
the proceedings, and who are not called, cannot be tendered as
evidence for the truth of what those oral or written statements say

Record
– Magistrate should indicate on record whether a town is situated
in Namibia or Zambia where towns in Namibia and Zambia have the same
names

Fair
Trial – Constitutional right to cross-examine those called against
accused – Refusal to recall witness in terms of section 167 of the
Criminal Procedure Act – Such refusal in casu, tantamount to
refusal of right to cross-examine – Irregularity vitiating the
proceedings

CASE
NO. CA 09/2005

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

KENNEDY
MASULE CHANDA APPELLANT

versus

THE
STATE RESPONDENT

CORAM: HOFF,
J et HEATHCOTE, A.J.

Heard
on: 2005.06.23

Delivered
on: 2005.06.23 (Ex temporae)

_______________________________________________________________

JUDGEMENT

HEATHCOTE.
A.J.: In this matter the appellant (to whom I shall refer as
the accused in this ex tempore judgement) was charged with
theft in the District Court of Katima Mulilo. The charge sheet reads
that the accused is guilty of crime of theft, “In that upon or
about the 20^th day of July 2003 and at or near Katima
Mulilo in the District of Katima Mulilo the said Accused did
wrongfully and unlawfully and intentionally steal the property or in
the lawful possession or control of Joshua Ilungu.”

At
the appeal the accused was represented pro amico by Mr Von
Weilligh and the State by Ms Rakow. Both of them filed very helpful
heads of argument.

The
accused was arrested on 29 July 2003 and convicted and sentenced on
20 August 2004. Today is 23 June 2005, almost two years after the
arrest.

One
thing that I need to impress upon the learned magistrate in this
matter, or for that matter, upon all learned magistrates in regions
where towns of Namibia are situated close to the Namibian border, is
that this court, more often than not, do not know to which places are
being referred to if the record is perused. Indeed from the record
of this case, it appears that the towns referred to, have got the
same names on the Namibian side as well as the Zambian side of the
border. It is therefore imperative that in these records, when there
is reference to names of towns, it should be indicated by the learned
magistrate in which particular country the town (being referred to)
is situated.

The
best that can be said from this record, is that, after I have read it
twice, I gathered that at some stage somewhere in the north of
Namibia alternatively somewhere in the south of Zambia there was a
bicycle. How the Accused could have been found guilty of theft of
the bicycle on that evidence remains a mystery.

But
apart from that, a number of irregularities have also occurred, the
most important or significant one being that at some stage during the
trial the Accused indicated that he wanted disclosure of the docket.
He was then offered the contents of the docket at the price of
approximately N$27.50. At the next hearing the accused wanted to
recall the first State witness to cross-examine him on the contents
of the docket. The request was obviously made in terms of Section
167 of the Criminal Procedure Act. This was out-rightly refused by
the magistrate, claiming that the complainant, who was the first
witness, had already gone back to Zambia. No indication whatsoever
has been given on the record as to what steps could have been taken
in order to recall the complainant. It also appears from the record
that the complainant’s so-called bicycle and trousers were still at
Court, and clearly, he would have had an interest in those. The
State would have remained or could have remained in contact with him.
The bottom line is that this request was refused and the accused was
not given the opportunity to cross-examine. The rights contained in
Article 12 of the Namibian Constitution are to be given effect to by
purposefully interpreting that Article. The right to cross-examine
those who were called against an accused is a specific right. The
magistrate refused the accused this right mentioned in Article 12.
To refuse an accused the opportunity to recall someone in order to
cross-examine him on the contents of statements made by that person,
is tantamount to refusing cross-examination to take place. In S v
Kandovazu which is a case reported in the Namibia Law Reports
1998 page 1 (Supreme Court of Namibia) written by Gibson, AJA, with
whom Mtambanengwe, AJA and Mahomed CJ agreed, the Court set aside a
conviction and sentence of the accused on the basis that the accused
was refused access, after request was made by his attorney, to the
contents of the State docket. At page 7 of that judgement, next to
the letter G, Gibson AJA said the following:

“In
non constitutional matters, therefore the Court asks whether the
irregularity is of a general or exceptional category. On reaching
this conclusion the learned Chief Justice turned to consider the
effect of a breach of the fundamental rights and freedoms entrenched
in the constitution.

To
decide this issue the learned Chief Justice examined authorities in
the Commonwealth, (Canada, Jamaica, Australia) and the United States
of America, and went on at 484A:

'But
even if it is assumed that the breach of every constitutional right
has the same effect on a conviction which is attacked on appeal, it
does not follow that in all cases that consequence should be to set
aside the conviction. I am not persuaded that there is justification
for setting aside on appeal all convictions following upon a
constitutional irregularity committed by a trial court.'

The
learned Chief Justice then concludes at 484B-C

'.
. . that the test proposed by our common law is adequate in relation
both to constitutional and non-constitutional errors'.

What
has to be looked at, as the learned Chief Justice observes is 'the
nature of the irregularity and its effect'. If the irregularity is
of such a fundamental nature that the accused has not been afforded a
fair trial then a failure of justice per se has occurred and the
accused person is entitled to an acquittal for there has not been a
trial, therefore there is no need to go into the merits of the case
at all.”

In
the Kandovazu case, the Supreme Court did not look at the
merits of the matter any further, but declared that the accused had
an unfair trial and set aside the conviction of the accused. In my
view, the irregularity that occurred in this case is a similar kind
of irregularity. It is fundamental. It deprived the accused of a
fair trial. For that reason the conviction and sentence cannot stand
and should be set aside.

But
I do need to raise, for purposes of this judgement, two other
aspects. The one is jurisdiction. I would have assumed that in all
towns close to the borders of Namibia, especially in the north,
magistrates and prosecutors are aware of and have studied the Supreme
Court judgement of S v Mwinga and Others. It is reported in
the Namibian Law Reports 1995 NR at 166. In that judgement the Court
discussed various issues, as far as jurisdiction is concerned. The
Supreme Court drew distinctions between continuing crimes and crimes
that are not. This judgement should be known and studied by all
those who are involved in criminal law in towns close to the borders
of the Namibia.

The
State must prove beyond reasonable doubt that the Court has
jurisdiction to hear the matter. It is so that theft is a continuing
crime, but that does not mean that a thief can be prosecuted in any
country where he finds himself, even in circumstances where he is not
in possession of the alleged stolen thing anymore. At least, that is
the Namibian law. I refer to South African Criminal Law and
Procedure vol (2) by Milton on page 628 where the learned authors
says the following:

“Whatever
might have been the position in the Roman and Roman Dutch Law it has
been accepted by our courts that theft is a continuing crime. By
that is meant ‘the theft continues as long as the stolen property
is in possession of the thief or of some person who was a party to
the theft or of some person acting on behalf or even possibly in the
interest of the original thief or party to the theft.”

Now
in this case, the State has never proven beyond reasonable doubt that
the Court of Katima Mulilo had jurisdiction to adjudicate upon this
theft. The one difficulty that faces the State today, is the one
that I have already mentioned. That is that this Court simply does
not know to which particular towns are being referred to in the
record. It is so and I don’t need to refer to authority, that a
court can take judicial notice of places in countries, where a
reliable map is handed in to Court. It has the same effect as
handing in a calendar. It might be useful if such a map is included
in all records where it becomes necessary. But this would not be
necessary if the magistrate clearly indicates on the record, in
exactly which country a town is situated.

In
my view the State has not proven beyond a reasonable doubt that the
Court had jurisdiction. The fact that theft is a contining crime
does not assist the State. The fact of the matter is that the
complainant lived, as it appears from the record, in Zambia and
apparently his bicycle was removed from this house in Zambia. There
is no indication that the accused ever brought that bicycle, or for
that matter, the trousers in to Namibia. There is a possibility upon
speculation, but that is not good enough. For that reason the appeal
should also succeed.

The
only further issue which I wish to deal with is the issue of hearsay
evidence. It appears that neither the magistrate nor the prosecutor
were au fait with the meaning and concept of hearsay evidence.
It is not necessary to refer to any authority. It would suffice to
state the definition of hearsay to the following effect: And that is
that, “oral and written statements by persons who are not a party
to the proceedings or who are not witnesses in the proceedings, and
who are not called, cannot be tendered as evidence for the truth of
what those oral or written statements say”. That is, I gather, why
magistrates and prosecutors should by now know that if an accused is
unrepresented and a name is mentioned by a witness, there should at
least be an indication given to the magistrate that that person will
be called to come and state the truth of the matter, so in order for
the statement to become admissible.

What
is more alarming is that an unrepresented accused might in certain
circumstances, and that is what happened in this case, be tempted to
cross-examine on statements which were patently hearsay. In those
circumstances the risk is that hearsay evidence, solicited through
cross-examination, will become admissible. I am not so sure, and it
is not necessary to decide, whether the same rule should apply, or
rather that the same rule should be applicable to undefended accused
persons. In this matter, the witnesses referred to letters which
could have been posted either in Zambia or Namibia. The allegations
in those letters were admitted against the accused without any
indication being given that the author will be called. And the
irregularities just went on and on and on. The irregularities
continued, and the accused remained in custody for a period of two
years in respect of the crime not proven, and in respect of a crime
over which the Court did not even have jurisdiction.

In
all those circumstances I am of the view that the appeal should
succeed, and it is ordered that the appellant’s appeal against
conviction succeeds. The accused’s conviction and sentence are set
aside.

______________________

HEATHCOTE,
A.J.

I
agree

______________________

HOFF,
J.

ON
BEHALF OF THE APPELLANT Mr Von Weilligh

Instructed
by: P D Theron & Associates

ON
BEHALF OF THE RESPONDENT Ms Rakow

Instructed
by: Office of the Prosecutor-General