REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case No.: CA 96/2014
DATE: 05 AUGUST 2015
SYLVESTER DANIEL
BINGA........................................................................................APPELLANT
versus
THE STATE
Neutral citation: Binga v State (CA
96-2014) [2015] NAHCMD 180 (5 August 2015)
Coram: SHIVUTE, J et SIBOLEKA, J
Heard: 13 May 2015
Delivered: 5 August 2015
ORDER
The appeal is dismissed.
APPEAL JUDGMENT
SHIVUTE J (SIBOLEKA J concurring):
[1] The appellant, a former police
officer, appeals against his conviction for contravening s 33 of the
Anti-Corruption Act 8 of 2003. It was alleged that he directly or
indirectly, corruptly solicited or accepted or agreed to accept for
the benefit of himself or any other person to wit Mr Josef Lebereki
for gratification as an inducement to or not to do anything or a
reward for having done or having omitted to do anything, namely
demanding and receiving a goat valued at N$300 from Josef Lebereki in
order for his donkey cart not to be seized for having been used to
commit a stock theft offence.
[2] The appellant was represented by a
legal practitioner during his trial and during the appeal he was
represented by Mr Grobler instructed by W Maske Legal Practitioners.
Mr Eixab appeared on behalf of the respondent.
[3] The grounds of appeal may be
summarized as follows:
The learned magistrate erred in law and
or in fact that:
a. By accepting the evidence of the
State witnesses, except that of Constable Ganeb, as the truth despite
the ‘lies’ they told and by rejecting the evidence of the
defence witnesses.
b. By finding that the first State
witness’ testimony was corroborated by the testimony of the
second State witness whilst the first witness was a single witness in
relation to the alleged demands by the appellant.
c. By failing to treat the first
witness as a single witness and by neglecting to apply the cautionary
rule regarding evidence of single witnesses as well as failing to
make a credibility finding on his evidence.
d. By not finding that one of the State
witnesses, Isak Sibolelo, falsely implicated the appellant and
threatened the first witness with a knife to lay a charge against the
appellant.
e. By failing to properly evaluate the
evidence in its totality and by failing to make a finding that the
appellant’s version could be reasonably possibly true.
f. By committing ‘serious
irregularity’ in refusing the appellant an opportunity to
properly present his defence when the evidence of the State witnesses
was placed before appellant to respond thereto and by ruling that the
questions put to the witnesses were leading.
[4] Counsel for the respondent
initially raised a point in limine in his heads of argument that the
record is incomplete and therefore the matter should be struck from
the roll.
[5] We allowed both counsel to argue
the points in limine as well as the merits of the case and reserved
ruling and judgment on the issues.
[6] On the point in limine counsel for
the respondent argued that it is the duty of the appellant to ensure
that the record is properly paginated and complete. However, counsel
proceeded to contend that despite certain portions of the evidence
being missing, the material aspects of the case are on the record and
the court can still make a determination whether the magistrate was
right or wrong in convicting the appellant. Although not formally
abandoning the point in limine, counsel did not persist with it and
urged the court to consider the merits.
[7] On the other hand counsel for the
appellant persisted with his argument that this court should allow
the appeal as the record is incomplete. Counsel argued on this aspect
that material parts relating to the evidence of the appellant and his
cross-examination of State witnesses have been lost thus making it
difficult for the court to weigh up the evidence of the appellant
with that of the State witnesses and that on this ground alone the
conviction should be set aside.
[8] As regards the merits, counsel for
the appellant argued that if the donkey cart were to be seized, this
was supposed to be done by senior police officers who were in the
company of appellant and not by him as he was a junior officer.
Police officer Clark asked the appellant about the goat that was
loaded in the vehicle and the appellant said he bought it at the post
where it was loaded. Which means that Clarke accepted the
appellant’s explanation that he bought it. There was a senior
officer, Keya, who should have been charged and not the appellant.
[9] Counsel argued that although the
court made a finding that the testimonies of witnesses for the
defence namely Keya, Clark and Van Wyk appeared to be evidence of
witnesses with interest to serve and rejected or attached little
weight on such evidence this finding is not borne out by evidence
tendered. The court a quo has misinterpreted the evidence of Warrant
Officer van Wyk when it held that he had testified that there was no
similar instance in the past when an article was supposed to be
seized when Van Wyk confirmed that a lot of donkey carts are involved
in stock thefts and they never confiscate a donkey cart as they
always have a problem with safe keeping as they do not have the
facilities thereby confirming that the police always used their
discretion not to confiscate the article if it is a donkey cart.
Counsel further argued that the learned magistrate misdirected
herself by finding that this case was different from other cases
where police officers can exercise their own discretion as this
finding was based on the above mentioned, incorrect interpretation of
Van Wyk’s evidence.
[10] It was further counsel’s
criticism of the court a quo that it failed to consider the evidence
of Abraham Bendt that witness Sibolelo drew a knife and threatened
Josef Libereki to stab him should he fail to lay a charge against the
appellant for taking his goat in exchange for his donkey cart not to
be impounded. The magistrate failed to caution herself on accepting
the uncorroborated evidence of a single witness and failed to make a
credibility finding on his evidence as being clear and satisfactory
in every material respect. Furthermore the learned magistrate failed
to make a finding that the threats by Sibolelo to Libereki could have
resulted in a reasonable likelihood for Libereki to make false
allegations against the appellant in order for Libereki to serve his
own interests.
[11] It was again counsel’s
argument that the court a quo erred in law by accepting Sibolelo’s
testimony about a goat that was given in exchange for the impounding
of a donkey cart as the truth, whilst it was hearsay as according to
Sibolelo, he was not present and did not see it as he was only
informed. Therefore, the evidence of Sibolelo in this regard is
inadmissible.
[12] Counsel further argued that the
learned magistrate erred in law by making a finding that: “Most
of the time, I mean articles are seized and they are kept at the
police station, at the end of the case the articles are released.”
Such finding according to counsel is not supported by the evidence
adduced, neither was she entitled to take judicial notice in that
respect.
[13] Counsel went on to submit that the
learned magistrate misdirected herself by finding that the State had
proved its case beyond reasonable doubt, whilst she did not properly
evaluate the evidence before her as she failed to consider whether
the appellant’s evidence could reasonably possibly be true when
weighed it up against the evidence of State witnesses, the inherent
strengths and weaknesses, probabilities and improbabilities on both
sides as to exclude any reasonable doubt about the appellant’s
guilt and because she was satisfied with the evidence of the State
witnesses the appellant’s evidence as well as his witnesses’
evidence were rejected. Counsel therefore urged the court to set
aside the conviction.
[14] On the other hand, counsel for the
respondent argued that the discretion to seize or not to seize is a
red herring and has no material bearing on the outcome of the appeal.
It was not disputed that the complainant offered his goat to the
appellant. At the same time it is common cause that although playing
an accessory role in the stock theft, complainant has never been
arrested nor was his donkey cart seized even though it was used in
the furtherance of a criminal activity. Furthermore, the appellant
never paid anything for the goat he took from the complainant; yet he
claimed the goat was sold to him. Counsel submits that the fact that
appellant never paid anything to Mr Libereki from 5 May 2005 to 20
September 2005 when the case was opened gives credence to the version
of the complainant.
[15] Counsel for the respondent argued
that the appellant approached the complainant at one stage and told
him that if police officers went to him he should tell them that the
appellant took the goat on credit from him. Libereki transported
stolen stock on his donkey cart yet he was not charged and his donkey
cart was not attached because he negotiated with the appellant and
the appellant received a goat. There was no material misdirection on
the part of the court a quo. Again Libereki was not a single witness
because Bendt heard what the appellant was saying to Libereki and
again Libereki told him what the appellant said.
[16] Concerning the evidence of
Sibolelo, counsel for the respondent contended that even if it is
eliminated, the evidence for the State would still be intact.
Regarding the issue of the finding by the magistrate that police
officers Clark van Wyk and Keya had an interest to serve this could
be a wrong finding. However, it did not affect the other findings of
the magistrate on conviction. The magistrate by making this finding
could have been prompted by the fact that the police officers shared
the meat of the goat in issue with the appellant
[17] Furthermore, counsel argued that
the second State witness’ testimony corroborated the version of
the complainant in material respects in as far as he testified that
he overheard the appellant requesting a goat in exchange for the
seizure of Libereki’s donkey cart. Therefore, so urged
counsel, the first State witness was not a single witness in this
regard. Counsel further submitted that Libereki and Bendt’s
versions remain intact despite minor contradictions seized upon by
the appellant. It cannot be ignored that the appellant was a police
officer on duty when he stumbled upon Libereki and for all intents
and purposes he should have treated Libereki as a suspect. Counsel
contends that no reasonable police officer in the execution of his
duties tasked with the investigation of a suspect in a stock theft
case would venture into a contract to buy livestock from a suspected
criminal when he is investigating unless he is corrupt.
[18] Counsel for the appellant in reply
argued that the State bears the onus of proof beyond reasonable doubt
that appellant bribed Mr Libereki and that he is guilty of
corruption. Counsel argued that there are two mutually destructive
statements of Mr Libereki and the appellant. If the court decides
that the magistrate was not entitled to make a decision that the
police officers acted for their own benefit then the court should
consider the evidence of police officer Clark that supports the
evidence of the appellant that the appellant told him that he bought
a goat and that police officer Keya was the investigating officer.
[19] The court having heard arguments
advanced by both counsel is now called upon to determine first
whether the evidence on record is sufficient for the court to
consider the appeal on the merits. Secondly, should it proceed with
the consideration of the merits, whether the magistrate erred in law
or in fact by convicting the appellant I will obviously take into
consideration the authorities referred to us by both counsel
concerning the contentions made by them.
[20] In S v Whitney and Another 1975
(3) SA 453 (N) at 453 Van Heerden J stated that:
‘The decided cases are in
agreement that where a record has been lost an accused is not ipso
facto entitled to an acquittal but that the best available evidence
of the record must be obtained to form the basis of any review or
appeal. The general principle or approach applies equally where part
of a record is lost as where the whole record is lost; it also
applies equally where evidence is lost where the machine fails to
record the evidence or any portion thereof.’
See also S v Peza 1962 (1) SA 664 (O)
In S v Collier 1976 (2) SA 378 (C) at
379 Burger J maintained that he was in agreement with the practice
that:
‘Where the whole record or a very
material part thereof has been lost prior to review or the appeal
being concluded, the proceedings and sentence should be set aside.
In such cases the Court of appeal or review is clearly unable to
consider the case. But it seems to me wrong that the same result
should follow where only some answers of a witness on matters which
are apparently not of vital importance are not recorded; It will lead
to an absurd result.’
[21] The responsibility of ensuring
that the record is complete and properly paginated lies with an
appellant. If a part of the record is missing, it is the
responsibility of an appellant to obtain the best available evidence
to enable a court to consider the appeal. Having perused the record,
I am of the view that although some parts thereof are missing the
material evidence is still available and the Court is thus in a
position to consider the merits of the appeal. For example, the
appellant’s version can be found at pages 50 – 60 of the
record. We are able to consider the merits of the appeal and the
Court would not be justified on the basis of missing portions of the
record alone to set aside the conviction.
[22] I will now proceed to deal with
the merits of the appeal. The appellant was part of a team of police
officers investigating a case of stock theft. He was not a senior
officer nor was he in charge of the investigations. Josef Libereki
(the complainant) whose donkey cart was used to transport stolen
stock was approached by the appellant, police officers Clark and Keya
regarding the stolen stock in his donkey cart. The appellant called
him aside and told him if he did not give him a goat he would seize
his donkey cart. Upon the appellant soliciting a goat from him, the
complainant and the appellant drove to complainant’s kraal and
gave a goat valued at N$300 to the appellant.
[23] The appellant on the other hand
testified that there was an agreement made on a previous occasion
between him and Libereki for Libereki to give the appellant a goat in
exchange for N$300 which was never paid.
[24] The appellant raised several
grounds that the magistrate misdirected herself in convicting the
appellant.
[25] As mentioned before, the
magistrate’s findings are being attacked, amongst others, on
the ground that she convicted on evidence of a single witness,
without warning herself as to the cautionary rule regarding the
evidence of single witnesses. According to the evidence on record
the version of the complainant that the appellant called him aside
and demanded for a goat in exchange of the seizure of his donkey cart
was corroborated by the evidence of Mr Bendt who said that although
the appellant spoke with a low voice he was able to hear the
conversation between the appellant and the complainant. In addition
to Mr Bendt hearing the conversation between the two, the complainant
also told him what he and the appellant discussed. Therefore, in my
view the magistrate did not misdirect herself on this score as the
complainant was not a single witness. The contradictions between the
complainant and Bendt concern the distances where witnesses were
standing when he overheard the conversation. These contradictions
are not material.
[26] The complainant testified that he
was indeed, threatened by Sibolelo because he bribed a police officer
by giving him a goat. It is not in dispute that the appellant
received a goat from the complainant the only dispute is whether the
goat was solicited from the complainant in order for the appellant to
omit to seize the complainant’s donkey cart that was used in
the commission of the offence. Even if the complainant was forced by
Sibolelo to lay a charge, the fact remains that there is evidence
from the complainant and Bendt that the appellant solicited the goat
in exchange for the seizure of the complainant’s donkey cart.
It appears that Sibolelo was trying to be a good citizen by insisting
on the combating of corruption and did not instruct the complainant
to lay a false charge. As to the ground that the evidence by
Sibolelo that a goat was given to the appellant is hearsay, even if
this evidence is ignored the outcome will still be the same because
there is corroborating evidence from Bendt that the goat was given in
exchange for the seizure of the donkey cart. These grounds therefore
cannot succeed.
[27] As regards the evidence of police
officer Van Wyk, he was not present at the scene. He gave his
opinion on why donkey carts allegedly used in the commission of crime
were not sometimes seized. But it was not the appellant’s
evidence that he used his discretion not to seize the donkey cart
because of storage problems. Moreover, as already mentioned he was
overheard to demand a goat in exchange for the seizure of the donkey
cart. It is common cause that he was given the goat which he never
paid for.
[28] Furthermore, I agree with counsel
for the State that the discretion to seize or not to seize is
peripheral in nature and has no material bearing on the outcome of
the appeal.
[29] At the pain of being repetitive,
although appellant testified that he received a goat from the
complainant because they had made arrangements prior to this incident
for the appellant to buy a goat on credit from the complainant, there
was no money paid to the complainant in respect of the goat four
months before he was arrested and subsequent to his arrest.
Concerning the evidence of Clark that he was told by appellant that
he bought the goat, this does not further the appellant’s case.
Clark
did not hear what the appellant and
complainant discussed. According to the appellant when he and
Libereki went to fetch the goat Clark and Keya went to the shop.
Whether Clark had accepted what the appellant told him or not is
irrelevant. Again if the appellant had bought the goat on credit why
would he go to the complainant and tell him that if the police went
to him asking about the goat he should say he bought it.
[30] Looking at the evidence in its
totality it is highly unlikely that a police officer who is part of
the investigating team and who was tasked to take statements from
suspects, including complainant as per appellant’s version
would indulge himself in dealings with the suspect in a case of stock
theft to buy a goat from the person suspected of stealing the stock
he was investigating. The magistrate was correct in accepting the
version of the complainant and Bendt as appellant’s version is
highly improbable. The court a quo cannot be criticised for not
accepting the evidence of Keya and Clark; after all these shared the
meat of the goat in issue with the appellant and may therefore have
had interests of their own to serve.
[31] In view of this I find that there
was no misdirection on the part of the magistrate in accepting the
version of the State and rejecting the version of the defence and her
further finding that the State had proved its case beyond reasonable
doubt.
[32] In the result the following order
is made:
The appeal is dismissed.
N N Shivute
Judge
A M Siboleka
Judge
APPEARANCES
APPELLANT: Mr Grobler –
Instructed by W Maske Legal Practitioners
STATE :Mr Eixab
Office of the Prosecutor-General