Court name
Supreme Court
Case name
S v Siyambango
Media neutral citation
[2003] NASC 6
















CASE NO: SA 05/2002



IN THE SUPREME COURT OF NAMIBIA





In the matter between:













KENNETH SIYAMBANGO



APPELLANT






AND













THE STATE



RESPONDENT






CORAM: Strydom, CJ., O’Linn A.J.A, et
Chomba A.J.A.


HEARD ON: 1/10/2002



DELIVERED ON: 13/02/2003






APPEAL JUDGMENT





CHOMBA, A.J.A.


This is a second appeal by Kenneth Siyambango (the
appellant) against his conviction on two counts of theft and a total
sentence of 8 years imprisonment with two years of that sentence
having been suspended. He was convicted and sentenced in the
Regional Court for the Windhoek District. He then unsuccessfully
appealed in the High Court (Maritz and Shivute, J.J.) He now
appears before this court with leave.





The convictions were based on counts charging
theft of a motor vehicle, namely a Toyota Hilux 4 x 4 , 2.4L pickup,
registration number N115-483W, and an ignition key for the same
vehicle, both being the property of the Legal Assistance Centre
(LAC). In the court of first instance the appellant was jointly
charged with one Bernard Kamwandi (the co-accused). Both of them
were convicted as charged and were sentenced as already stated. The
co-accused has not appealed.





For the purpose of the present judgment, I find it
unnecessary to recapitulate in detail all the evidence as given by
the prosecution witnesses as well as by the appellant and his
co-accused. It will suffice to summarise only the salient aspects of
the said evidence.





The prosecution evidence was given by Linus
Neliwa, a Police Constable in the Namibian Police Force stationed at
Otjiwarongo, Norman Tjombe, a legal practitioner working for the
said LAC and at the material time a co-worker with the appellant.
There was then Joseph Kaulika, an Office Assistant at LAC followed
by Patricia Claassen, another worker at the same Centre, but whose
actual position there was not specified. The last prosecution
witness was Thomas Nekete, a Security Guard deployed at the LAC, but
employed by Security Force Services.





Both the appellant and his co-accused gave
evidence on oath in their defence.





The prosecution case was that in the late
afternoon of February 2, 1999, Thomas Nekete was performing guard
duties at the LAC. While in the course of duty he saw the appellant
drive into the LAC premises in a Jetta VW car. He had a passenger
whom Nekete subsequently came to know as the appellant’s
co-accused. The duo entered the LAC building and remained there for
about an hour. This incidentally was after working hours.
Subsequently when the appellant emerged from the building he entered
the Jetta VW car and drove out of the LAC premises but parked
closeby. The appellant re-entered the building and shortly
thereafter an alarm system installed in the building triggered off.
The appellant re-appeared to Nekete and invited the latter to go
inside the building with the appellant to check whether there was an
open window or something else inside which had triggered the alarm
system. Nekete declined to go in and while he was outside the
building by the gate, which was then ajar, he saw the appellant’s
co-accused driving the said Toyota Hilux, the subject of the motor
vehicle theft charge out of the LAC premises. Being a new person at
the LAC who did not know all the LAC employees, Nekete assumed that
the appellant’s co-accused was one such employee. It was for that
reason that Nekete did not raise any alarm when the co-accused drove
off.





Norman Tjombe
testified that prior to the 2nd of February 1999, the
original ignition key of the subject Toyota Hilux was stolen. He
consequently feared that whoever had stolen the key might be planning
to steal the Toyota Hilux as well. Therefore when he knocked off
work on the 2nd of February 1999 Norman Tjombe drove that
vehicle to his residence for safekeeping. Then he went out visiting.
On his return he learned that the appellant had phoned a couple of
times or so and had asked to speak to him Tjombe. Tjombe returned
the call and when connected to the appellant the appellant asked
Tjombe to let the appellant have the use of the said Toyota Hilux
that evening. Tjombe got the impression that the appellant was at
LAC offices at the time of the conversation between them. Tjombe was
not in a position to drive the Toyota Hilux to the LAC premises
immediately because he first watched the 8.00 pm TV News.





When he eventually drove to the LAC offices Tjombe
did not find the appellant there. He nevertheless parked the said
vehicle in the LAC parking area while he left its ignition key in a
drawer in the reception area in the same building. At that time
Patricia Claassen was working late at LAC and Tjombe saw her. Before
leaving Tjombe told both the security guard Nekete and Ms. Claassen
that only the appellant, Kenneth Siyambongo must be allowed to take
the Toyota Hilux.





Later, around 11.00 pm that very evening, Tjombe
returned to LAC to do some work. He met with the appellant there but
shortly after that the appellant drove off in the Jetta VW car. Soon
afterwards Tjombe noticed that the Toyota Hilux was not where he had
parked it. He got worried thinking that his fear that the vehicle
may be stolen was vindicated. He then phoned the appellant on the
latter’s cell phone and asked him if he had used the Toyota Hilux
that evening. The appellant replied in the negative. The appellant
drove back to the offices where Tjombe instructed him to go and
position himself at the Okahandja turn off between Katutura township
and the City of Windhoek in order to watch out should the assumed
thief drive along that way.





Meanwhile Tjombe linked up with Joseph Kaulika and
while driving in the former’s car the two headed for Otjiwarongo on
the assumption that the vehicle thief had taken that route. That
gamble paid off because as they approached Otjiwarongo they spotted
the vehicle they were looking for with a police vehicle hot on its
heels. When Tjombe and Kaulika eventually caught up with the vehicle
it had been stopped by constable Linus Neliwa. Its driver turned
out to be the appellant’s co-accused. When asked at that point
where he had got the vehicle from the co-accused was not forthcoming.





Later the co-accused was taken to Otjiwarongo
Police Station and while there he was asked again where he got the
stolen vehicle from. The co-accused was reported to have stated that
he got it from an Angolan man with instructions to take it to Tsumeb.
At one point when the co-accused was at Otjiwarongo Police Station,
Joseph Kaulika found and took from the stolen vehicle a cell phone.
Later that cell phone rang. Kaulika answered the phone and the
following short conversation took place between the caller and Joseph
Kaulika according to the evidence of Joseph Kaulika :





Joseph : “Hallo”


Caller : “Who is this?”


Joseph : “its’ me Joseph. We found the
bakkie, we are at Otjiwarongo


Police Station”.


Caller : “Oh, you found it?”, then he
immediately dropped the


phone.





Joseph Kaulika was adamant both in chief and
under cross-examination that he recognized the voice of the caller as
that of the appellant. He was one hundred percent sue, he testified
under cross-examination. This was because he had talked to the
appellant several times before during their common employment at the
LAC.





Apart from what
has been reproduced hereinbefore, another highlight of the evidence
of Thomas Nekete, the security guard, was that at about 5.00 o’clock
am on 3rd February, 1999 while he was still on duty at the
LAC, the appellant returned to the LAC offices. He asked Nekete
whether he had seen Norman Tjombe. In reply Nekete stated that
Tjombe had gone in search of the vehicle which the person who had
been in the appellant’s company earlier on that evening, meaning
the appellant’s co-accused, had driven away. The appellant
replied that his companion could not have driven the stolen motor
vehicle away because the appellant had driven away with his companion
in the Jetta VW car. Reacting to Nekete’s insistence in
implicating the appellant’s co-accused, the appellant then said
that he, the appellant, was mistaken because his companion had left
the LAC offices a good while earlier while the appellant was still
working.





In essence the
evidence of the appellant’s co-accused was that in the morning of
2nd February 1999 he spoke with the appellant on the phone
and told the appellant that he, the co-accused, wished to collect a
bed and other things from Otjiwarongo. However, he had a problem in
that he did not have an appropriate transport in which to fetch those
things. The appellant replied that he would assist. To that end the
appellant added that he and the co-accused could travel to
Otjiwarongo after 4.00 o’clock pm when the appellant would knock
off work. Later that afternoon the two met at Windhoek Police
Station and from there they drove in the appellant’s car to the
LAC offices. At the last mentioned place they found that the vehicle
which they were to have used for the purpose of travelling to
Otjiwarongo as previously arranged was not there.





The appellant and his co-accused entered the
office building and while there the appellant phoned the person
supposed to have the vehicle concerned. That person was not at home
and therefore the appellant having left the message for him, the
appellant and the co-accused drove to Katutura township. Later that
evening these two drove back to LAC offices and this time found that
the vehicle to be used for the Otjiwarongo trip was at the offices.
The appellant got the vehicle’s ignition key which he handed to
the co-accused. The appellant then impressed upon the co-accused
that the latter must bring back the vehicle before 7.00 o’clock
a.m. the following morning. The appellant showed the co-accused how
to operate the alarm system inside the vehicle. The appellant then
told the co-accused that he could not accompany the co-accused to
Otjiwarongo because he wished to go and see a sister of his within
Windhoek.





It was after the foregoing arrangement that the
co-accused drove the subject vehicle away from the LAC premises
heading for Otjiwarongo. The co-accused did not dispute the
evidence of the prosecution witnesses as to his eventual apprehension
in Otjiwarongo. It is significant to record that the co-accused
stated under cross examination that as he drove out of the LAC
premises he saw the security guard who was then by the gate. The
co-accused even waived to the security guard.





The appellant’s testimony was essentially one
of denying being concerned in the removal of the subject vehicle from
the LAC offices on the material date. He testified that on that day
in the afternoon he had a chancy meeting with the co-accused who was
an old friend. The meeting by the two persons occurred at Windhoek
Police Station. The appellant gave the co-accused a lift in the
appellant’s vehicle. They first drove back to the LAC offices.
The appellant stated that he had himself some furniture which he
wanted to move and to that effect he tried to request Norman Tjombe
by phone to make the subject vehicle available by bringing it to the
LAC offices. Unfortunately Tjombe was not at home and so the
appellant left a message for him to return the call.





When eventually that evening Tjombe returned the
call, the appellant told him that it was then too late in evening for
him to move the furniture and he would therefore not require the
vehicle, but would do so the following day. However Tjombe said
that he had already left the vehicle at the LAC offices. The
appellant conceded that later that evening he did drive to the LAC
offices in the company of the co-accused, but he said that the
purpose of so doing was to go and do some work at the offices. He
denied that he was the one who gave the co-accused the subject
vehicle, let alone the key thereof. He suggested that the co-accused
could have furtively taken the ignition key from the reception area
inside the LAC offices since the said reception area was easily
accessible to anyone.





Suffice it to state that the trial magistrate
accepted the prosecution case while rejecting that of the defence.
As regards the appellant, he found that the evidence against him was
circumstantial. He found that evidence to have inferentially
pointed overwhelmingly to the appellant as being a co-perpetrator of
the two crimes charged. The magistrate summarily dismissed the
co-accused’s version implicating the appellant. He gave one reason
for doing so. This was that the co-accused’s evidence lacked
credibility because when first stopped by the police on the
Otjiwarongo road the co-accused had failed to explain how he had come
into the possession of the subject vehicle. On the other hand at
the Otjiwarongo Police Station he made a statement in which he stated
that he had been given the subject vehicle by an Angolan man. The
magistrate observed that by his testimony in court the co-accused had
shifted ground and therefore that his evidence could not be taken
seriously.





It is an entrenched principle of evidence that an
appellate court must be slow in interfering with a trial judge’s
findings of fact and those findings relating to the credibility of
witnesses. This is because the trial judge has the advantage of
having seen and heard the witnesses, which advantage is not enjoyed
by appellate judges. However in the cause celebre of Watt, also
known as Thomas vs Thomas (1947) AC. 484, Lord Thankerton had this
to say in regard to the only occasion when an appellate court may
feel justified to interfere with findings of fact by the trial
court. (see at page 487) ;





“Where
a question of fact has been tried by a judge without a jury, and
there is no question of misdirection of himself by the judge, an
appellate court which is disposed to come to a different conclusion
on the printed evidence, should not do so unless it is satisfied that
any advantage enjoyed by the trial judge by reason of having seen and
heard the witnesses, could not be sufficient to explain or justify
the trial judge’s conclusion;



The appellate court may
take the view that, without having seen or heard the witnesses, it is
not in a position to come to any satisfactory conclusion on the
printed evidence;


The
appellate court, either because the reasons given by the trial judge
are not satisfactory, or because it unmistakably so appears from the
evidence, may be satisfied that he has not taken proper advantage of
his having seen and heard the witnesses, and the matter will then
become at large for the appellate court”.





In the current case the trial magistrate came to
the conclusion that the appellant’s co-accused was not to be
believed because of what he had done or said prior to the occasion
when he gave his sworn testimony at the trial. The conclusion was a
finding of fact with which ordinarily this appellate court should
not lightly differ.




However, as Lord Thankerton states in Thomas,
Supra, if this court considers that the reasons given by the trial
judge for coming to the finding of a fact is unsatisfactory, or that
it unmistakably appears from the evidence that he has not taken
proper advantage of his having seen and heard the witnesses, the
matter will then become at large for the appellate court.





In
casu, the appellant’s co-accused incriminated the appellant
in his testimony. However that incriminating evidence was caught by
the principle of practice which states that it is dangerous to
convict a person solely on the strength of the uncorroborated
evidence of an accomplice. Therefore a trial judge should be alive
to that danger and in jury cases the judge is under a duty to warn
the jury of such danger, while at the same time telling them that it
is competent to convict on such evidence provided that the jury is
satisfied that the evidence is credible.





It
was reasonable for the trial magistrate to doubt the evidence of the
co-accused incriminating the appellant if it was uncorroborated. But
in my considered opinion the co-accused’s evidence was discounted
on an improper ground. Had the trial magistrate looked for
corroborating evidence, he might have found that such evidence was in
fact available.





In
the light of the evidence which has been reviewed in the preceding
paragraph of this judgment it cannot be gainsaid that the appellant
was at locus in quo at the time the theft charged occurred.
That evidence was given by the co-accused and corroborated by that of
the security guard Thomas Nekete. There was then the evidence of
Joseph Kaulika regarding the phone call received on the co-accused’s
telephone at Otjiwarongo. I have already reproduced it
hereinbefore. Despite the appellant’s protestation, that evidence
was found credible by the trial court and by the court a quo. We
equally attach credence to it in as far as it implicates the
appellant. Not only did Joseph Kaulika recognize the caller’s
voice as that of the appellant, but he explained that he was able to
do so because in the course of their joint employment with the LAC
Joseph Kaulika had spoken to the appellant on the phone on several
occasions. Moreover the nature of the conversation itself between
the caller and the receiver showed that the caller knew Joseph
Kaulika, knew about the disappearance of the vehicle and also that
some persons had gone in hot pursuit of that vehicle. In the
circumstances obtaining at the time of the phone call the only person
who fitted into the caller’s description was the appellant. To
this end Joseph Kaulika’s evidence on this point was also
corroborative of the co-accused’s story.





Another
piece of evidence which is of interest in this regard is that in
relation to the conversation which the security guard Nekete narrated
as having taken place between him and the appellant at 5.00 o’clock
am at LAC offices on the morning of 3rd February 1999.
That conversation was provoked by Nekete’s mention that the
subject vehicle was driven away by the person with whom the appellant
was accompanied when he got to the LAC offices the previous evening.
It is common cause that the appellant’s companion that evening was
the co-accused. At first the appellant lied by saying that his
companion had left with him by Jetta VW car, but in the face of the
unwavering and insistent statement of Nekete that it was the
appellant’s co-accused who took and drove away the subject
vehicle, the appellant retracted his claim that his co-accused had in
fact left the LAC offices at the same time as him. Nekete’s
evidence on this point was, in my opinion, equally corroborative of
the co-accused’s evidence. This is because it implied guilty
knowledge on the appellant’s part.





Flowing
from the foregoing, it is my considered view in keeping with Lord
Thankerton’s dictum in the Thomas case earlier referred to, that
the trial magistrate did not take proper advantage of his having
seen and heard the witnesses especially those who gave evidence which
was supportive and corroborative of the co-accused. In this
connection I would hold that the trial magistrate misdirected himself
and therefore I find justification in departing from his finding of
fact to the extent that he disbelieved the co-accused.





The co-accused’s evidence was further that the
plan between him and the appellant was merely for him to use the
Toyota Hilux for the purpose of enabling him to travel to Otjiwarongo
to fetch his bed and other things and then drive back to Windhoek.
He had to return the vehicle to its owner before 7.00 o’clock a.m.
the following day. That evidence appears to be true since the
co-accused was apprehended as he was on the approach to Otjiwarongo.





The
offence of theft implies that the thief must have taken the thing
stolen with an animus furandi, that is to say an intent to
permanently deprive the owner of the thing stolen. It was incumbent
in this case that the prosecution should prove that intent beyond
reasonable doubt. In my judgment the prosecution neither directly
nor circumstantially succeeded in proving that intent. In the event
I am left with no choice except to either believe the co-accused’s
story or give him the benefit of doubt. I give him the latter.





The
evidence of the co-accused can be reasonably possibly true in this
regard. His evidence can consequently not be rejected as false.
Although the appellant’s denial of any complicity must be rejected
as false, his conviction of theft cannot stand in the light of the
evidence of his co-accused and the surrounding circumstances which
are common cause. The appellant as well as his co-accused however,
knew at all times that the owner of the vehicle had not consented to
the particular use of its vehicle by either the co-accused or the
appellant and would not have consented thereto if he had known about
it. The co-accused and the appellant as co-perpetrator had therefore
contravened sec.8 of Ord. 12 of 1956 in that they unlawfully
appropriated the use of the vehicle in question without the
permission of the owner thereof and without grounds for believing
that the owner, or person in control thereof, would have consented to
such use if he had known about it.





The
above conviction is a competent verdict on a charge of theft. See
sec.264(1)(d) of Act 51 of 1977.





On
the foregoing premise I would, and do, hold that the appellant,
having been a co-perpetrator of the offence committed in relation to
both the subject vehicle and its ignition key, was, and stands,
guilty of the offence of taking and driving away the subject vehicle
without the consent of the owner thereof, such taking and driving
away not amounting to theft. I would convict him accordingly on
both counts.





In
the light of the outcome of the appeal against conviction I consider
that this court should equally interfere with the sentences by way of
reducing them.





I
would in the circumstances make the following orders:






  1. The
    appeal against conviction succeeds on both counts.


  2. The
    conviction of theft on the two counts is consequently quashed.


  3. A
    conviction of contravening sec. 8(1) of Ord. 12 of 1956 is
    substituted on both counts.


  4. The
    offences are taken together for the purpose of sentence and the
    following sentence is imposed:









    1. N$5000
      fine, in default 2 years imprisonment;


    2. In
      addition: 1 year imprisonment suspended for 3 years on condition
      that the appellant is not again convicted of a contravention of
      sec. 8(1) of Ord. 12 of 1956 committed during the period of
      suspension.














































---------------------------


CHOMBA,
A.J.A.





I
agree








STRYDOM,
C.J.








I
agree








O’LINN
A.J.A.















COUNSEL
ON BEHALF OF THE APPELLANT: MR. R. Cohrssen


ASSISTED
BY: Mr. A. Pickering


INSTRUCTED
BY OLIVIER’S LAW OFFICE.





FOR
THE RESPONDENT: Ms. E. Harmse


ON
BEHALF OF THE PROSECUTOR GENERAL