Court name
High Court Main Division
Case number
CRIMINAL 36 of 2013
Title

S v Mangate (CRIMINAL 36 of 2013) [2013] NAHCMD 154 (07 June 2013);

Media neutral citation
[2013] NAHCMD 154
Coram
Ndauendapo J
Unengu AJ













NOT REPORTABLE







REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case No: CR 36/2013







In the matter between:







THE STATE



and



FILLIP MANGATE







Neutral citation: The
State v Mangate
(CR 36/2012) [2013] NAHCMD 154 (7 June 2013)







Coram: NDAUENDAPO,
J and UNENGU, AJ



Delivered on: 7 June
2013







Flynote: Criminal
law – Housebreaking with intent to steal and theft –
Proof of Accused selling and found in possession of goods removed
from the house of complainant – Failure of accused to explain
possession of such goods – Conviction of theft substituted with
one of guilty of housebreaking with intent to steal and theft on
review.







Summary: The
accused charged with housebreaking with intent to steal and theft but
convicted of theft – on review the conviction of theft has been
substituted with a conviction of housebreaking with intent to steal
and theft due to failure of the accused to explain possession of
goofs removed from the house of complainant during the housebreaking.





ORDER





In the result, I make the
following order:



(i) The conviction of
theft is set aside and substituted with a conviction of guilty of
housebreaking with intent to steal and theft.








(ii) The sentence is
confirmed.









REVIEW JUDGMENT









UNENGU, AJ (NDAUENDAPO, J
concurring):







[1]
The accused was charged with housebreaking with intent steal and
theft, but, after a trial,
he
was convicted of theft and sentenced to pay a fine of N$2000.00 with
an alternative imprisonment period of 12 months of which N$1000.00 or
6 months thereof suspended for 3 years on the usual condition.
Thereafter the matter was submitted for automatic review.



[2] On review, I queried
the learned magistrate why he convicted the accused of theft and not
of housebreaking with intent to steal and theft – the crime he
was charged with.



[3] Answering to the
query the learned magistrate gave a brief assessment of evidence
placed before him by the State and concluded that in his opinion, the
evidence was entirely circumstantial which supported the crime of
theft – even though the State hoped to secure a conviction of
housebreaking with intent to steal and theft based on the doctrine of
recent possession.



[4] To
support the conviction of theft, the magistrate referred to
S
v Kapolo
1,
a judgment by Strydom, JP (as he then was) with Frank, J concurring.
In the
Kapolo
matter,
the accused was also charged with housebreaking with intent to steal
and theft. No direct evidence was led by the State to link the
accused to the housebreaking of the project building. However, based
on the doctrine of recent possession, the magistrate found the
accused guilty of housebreaking with intent to steal and theft. On
review, the conviction of guilty of housebreaking with intent to
steal and theft, was substituted with a verdict of guilty of theft of
the sewing machine, found in accused’s possession when he was
arrested. Strydom, JP stated that ‘it is correct that where a
person is found in possession of recently stolen goods and has failed
to give any explanation which could reasonably be true, a court is
entitled to infer that such person had stolen the article or that he
is guilty of some other offences’.



[5]
The facts in the present matter are almost identical to the facts in
the
Kapolo
matter.



[6] In this matter the
house of the complainant was broken into around 2 September 2010 when
she was on holiday in Windhoek. Several items, amongst others, a
stove (hot plate) and a pot were removed from the house. On 4
September 2010, 2 days after the burglary, the accused sold the
stolen pot to a certain Paulus Tjivera for N$25.00 – the
accused telling Mr Tjivera that the pot was his property which he
brought with from the farm. This pot was identified by complainant as
hers which was removed from the house during the housebreaking.
Similarly, a stove, also one of the stolen items from the house of
complainant was found wrapped up in the trouser of the accused by a
witness, on 4 September 2010, the same day the accused sold the pot
to Tjivera. The stove was also identified by the complainant as hers.
After the state’s case was closed the accused elected to, also
close his case without him or any other person testifying on his
behalf.



[7] As previously
indicated, the facts of this matter and those in the Kapolo matter
are almost identical. There is, however, a difference between the two
matters. This is that the accused in the present matter failed to
explain his possession of the stolen stove (hot plate) and the pot
which items, according to the evidence, the stove was found wrapped
in his trousers and the pot was sold for N$25.00 to one of the
witnesses. Whereas in the Kapolo matter, accused, although not
testifying himself, called witnesses who told the court that another
person gave the sewing machine to him to sell – confirming his
plea explanation.



[8] In view of the
failure of the accused to give an explanation of his possession of
the pot and stove (hot plate) which could be accepted by the court as
reasonably true, I am of the view that the only inference which can
be drawn from the facts of the matter, is that none other than the
accused has broken into the house of the complainant and removed the
stove (hot plate) and the pot with a combined value of N$300.00 and
should be so convicted.



[9] This matter was
submitted for automatic review more than a year after the sentence
was passed. It is therefore possible that the accused had either paid
the fine or a part fine thereof while in custody or had served the
six (6) months, the alternative sentence. That being so, it will not
serve any purpose to substitute the sentence imposed by the
magistrate.








[10] In the result, I
make the following order:



(i) The conviction of
theft is set aside and substituted with a conviction of guilty of
housebreaking with intent to steal and theft.








(ii) The sentence is
confirmed.
















___________________



EP Unengu



Acting Judge























___________________



N Ndauendapo



Judge








11995
NR 129 (HC)