Court name
High Court Main Division
Case name
S v Mutita
Media neutral citation
[2016] NAHCMD 261
Liebenberg J
Shivute J




No: 52/2016



the matter between





S v Mutita (CR
52-2016) [2016] NAHCMD 261 (09 September 2016)


09 September 2016

Criminal procedure – Review – Accused charged with
contravention of s 2 of Act 12 of 1990 – Found in possession of
suspected stolen stock – Accused convicted on basis of common
purpose – Evidence adduced falling short of establishing any
link between the two accused in committing the offence – Court
erred by relying on evidence of the investigating officer when
contradicted by other State witness – Fact that cell phone of
accused had been used to contact the buyer not proof of his
involvement – Accused’s explanation that co-accused used
his phone whilst in his custody reasonably possible –
Insufficient evidence to convict – Conviction overturned on


The conviction and sentence in respect of
accused no 2 are set aside.

Accused Kangumbe Mutita is to be liberated


J: (Concurring SHIVUTE J)

This is a review matter in which the accused persons were arraigned
in the magistrate’s court for the district of Rundu on a charge
of contravening section 2 of the Stock Theft Act 12 of 1990, for
having been found in possession of suspected stolen stock for which
they were unable to give a satisfactory account for such possession.
Accused no 1 absconded half way through the trial where after the
court ordered the separation of trials and finalised the matter
against accused no 2 who was convicted (as charged) and sentenced to
a fine of N$4 000 or 2 (two) years’ imprisonment.

Upon perusal of the proceedings sent on review I have come to the
conclusion that there was insufficient evidence against accused no 2
for a conviction, and that the accused will be severely prejudiced if
a statement of the magistrate first had to be obtained as required by
law. It was accordingly decided to dispense with any further
statement as provided for in s 304(2)(a) of the Criminal
Procedure Act 51 of 1977.

Both accused pleaded not guilty and in their respective plea
explanations accused no 1 said that the ox in question was from their
kraal ‘in the inland’, whilst accused no 2 proclaimed his
innocence by saying that he had never taken possession of the said
ox, that it was not found at his place, and that he was not involved.
It is common cause that no evidence was adduced which brought accused
no 2 in direct contact with either the ox or its meat after it had
been slaughtered. From a reading of the court
judgment it is evident that
he was convicted on the basis of having acted with common purpose.
The court deduced this from evidence presented about the cell phone
of accused no 2 having been used during a transaction made with the
buyer. By way of inferential reasoning the court found that accused
participated in the slaughtering of the ox and that he was unable to
give a satisfactory explanation. He was accordingly found guilty of
possession of suspected stolen stock.

The findings reached by the trial court is flawed in more than one
way. Firstly, there is no evidence which remotely suggests that
accused no 2 participated in the sale or killing of the subject ox
and, secondly that he was found in possession of the ox or its meat.
He was merely implicated by his cell phone having been used to make
calls from to the buyer. Though accused no 2 does not dispute that
the said calls were made from his phone, he denies having done so
himself and explained that during the relevant times he had left his
cell phone at accused no 1’s place where the battery had to be
recharged. It was the undisputed evidence of accused no 2 and his
wife, Innontia Shimbara that he would regularly have his cell phone
recharged at the house of accused no 1 which had electricity, whereas
there was none at his own house.

Both were extensively cross-examined as to the exact time the phone
had been with accused no 1 over a period of days in order to negate
any explanation that accused no 1 could have made the calls from
accused no 2’s phone whilst it was with him. Not surprisingly
the witnesses were not on all occasions able to explain the exact
times when the phone was at accused no 1’s place for charging,
from which the court inferred that accused no 2 was unable to give a
reasonable explanation for his alleged involvement and convicted him.

In the absence of evidence to the contrary,[1]
ownership of the ox belonging to one Simbo Masiye had duly been
established and was not an issue in dispute as far as it concerns
accused no 2.

The second witness called by the State was Gideon Emile who runs a
catering business as well as a butchery. She had her willingness to
buy cattle from the public announced on the radio and was
subsequently telephonically contacted by someone who offered her one
head of cattle for sale. Though she could not initially remember the
name of the person, she came to meet him later and it turned out to
be accused no 1. He confirmed having called her earlier and then
showed her a black and white coloured ox that was for sale. She had
only met with accused no 1 and at no stage had any contact with
accused no 2. After the ox had been slaughtered someone came up and
asked accused no 1 whose ox it was, to which he replied that it
belonged to his grandmother. He had also given the same explanation
to Sergeant Sindimba when he was found in possession of meat. As it
turned out, accused no 1’s grandmother denied ownership of the
ox in question. He then approached the potential buyer (Gideon Emile)
and obtained from her the telephone number from which she was
contacted during their dealings. He learned that it was that of
accused no 2 who was then arrested and charged. According to him
Emile told him that she expected to meet up with a person by the name
of Mukutu, but that it was accused no 1 who took her to the ox that
was for sale.

I pause here to remark that Emile during her testimony was unable to
recall the name of the person she had spoken to on the phone but,
even if it had been a person going by the name of ‘Mukutu’,
it is clear that accused no 2 does not go by that name, therefore it
could not have been him. This notwithstanding, Sergeant Sindimba, in
cross-examination, said that Emile had told him that she had been
communicating with accused no 2. He said this indicated to him that
they had ‘acted with one criminal intent’. On a further
question as to whether accused no 1 had told him that he (accused no
2) was also involved, he answered in the negative but added that he
had been linked ‘through [the] investigation’. There can
be no doubt that the trial court, in the absence of any other
evidence, solely relied on the testimony of the investigating officer
when it came to the conclusion that accused no 2 was an accomplice.

It is clear from the afore-stated that the testimony of Sergeant
Sindimba as regards the identity of accused no 2, contradicts that of
Emile. Not only was she unable to recall the name of the person with
whom she had earlier spoken over the phone, she never implicated
accused no 2 during her testimony. There can be no doubt that
Sergeant Sindimba’s evidence on this score is unreliable and
seems to have been tailored to implicate accused no 2 for the sole
reason of phone calls having been made from his cell phone. The trial
court thus erred when it relied on the investigating officer’s
evidence in order to establish a link between the two accused as
there was no reliable evidence in support thereof. Already at the
close of the State’s case it should have been evident to the
trial court that there was insufficient evidence to put accused no 2
on his defence.

The only link between the two accused was the cell phone of accused
no 2 that had been used to communicate with the buyer, Emile, on
different occasions. It was explained by accused no 2 that he was not
part of any of the discussions with Emile and his evidence on this
score was not refuted in any manner. His explanation of him having
left his cell phone at accused no 1’s place for purposes of
having the battery recharged was corroborated by his wife. In
addition accused no 2 led the evidence of a herdsman, Makanga
Hamutenya, who said that he had seen only accused no 1 collecting
some cattle from the field and that accused no 2 at the time was at
home. That also tends to show that he was not directly involved in
either the driving of cattle to a specific place, or the slaughtering
of the ox. Also clear from Emile’s evidence is that accused no
2 was not present during the slaughtering, yet the court found that
he participated. On this point the trial court clearly erred on the

It is settled law that the accused is entitled to his acquittal if
the explanation he gives, considered against the body of evidence, is
reasonably possibly true. In the present instance where evidence
rebutting his story is lacking, the court could not have convicted on
the evidence presented, and the conviction falls to be set aside.

In the result, it is ordered:

The conviction and sentence in respect of
accused no 2 are set aside.

Accused Kangumbe Mutita is to be liberated





Accused no 1 absconded before he had given evidence.