Pitt and Another v S (CA 37/2014) [2016] NAHCMD 218 (31 August 2018);

Group

Full judgment



REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CA 37/2014

DATE: 25 JULY 2016

In the matter between:

LEONARD PITT.........................................................................................................1ST APPELLANT

SIEGFRIED USEB.....................................................................................................2ND APPELLANT

And

THE STATE....................................................................................................................RESPONDENT

Neutral citation: Pitt v State (CA 73-2014) [2016] NAHCMD 218 (25 July 2016)

Coram: LIEBENBERG et MILLER AJ

Heard: 03 November 2014

Delivered: 25 July 2016

ORDER

The appeal is dismissed.

JUDGMENT

MILLER AJ (LIEBENBERG J concurring):

[1] The appellants were charged in the regional court sitting in Swakopmund with the crime of Housebreaking with the intent to steal and theft.

[2] The charge stems from the theft of some horse riding saddles and other items of riding equipment from a barn belonging to a certain Mr Hertzog.

[3] They pleaded not guilty but after a trial the learned magistrate convicted the appellants of theft.  A custodial sentence was imposed. The appellants filed a notice to appeal against the convictions and sentences imposed.

[4] The appeal against the sentence imposed was subsequently withdrawn.  Only the appeal against the conviction remains. It is common cause that the property listed in the charge sheet was stolen from the barn of Mr Hertzog.

[5] The evidence established further that the first appellant with the assistance of the second appellant sold some saddles to different persons. They were subsequently recovered by the police. Upon the saddles being shown to the complainant he identified them as his property and part of what had been stolen.  He identified the saddles by their general appearance and the fact that they were imported saddles.

[6] Mr Uirab who appeared for the appellants urged us to find that this evidence is insufficient. This argument fails to take into account the evidence of the investigating officer that the first appellant directed him to the complainant’s farm. We bear in mind that the complainant stated that the police were alone. We also bear in mind that the first appellant did not testify at the trial.

[7] As far as the factual dispute between the complainant and the investigating officer is concerned; the evidence of the investigating officer is that if the first appellant had not directed him to the complainant’s farm, he would not have known that the complainant’s property had been stolen.  This together with the other facts tilt the balance of probability overwhelmingly in favour of the fact that the first appellant did direct the investigating officer to the farm of the complainant.

[8] It is not incumbent upon the state to prove necessarily that the goods stolen are these of the complainant. State v Kariko 1998 NR 13 (HC).

[9] In the result we conclude that the court a quo was correct in convicting the appellants of theft.

The appeal is dismissed.

P J MILLER

Acting Judge

J C LIEBENBERG

Judge

APPEARANCES

APPELLANT: B M Uirab

Directorate of Legal Aid, Windhoek

RESPONDENT: S R Nyambe

Office of the Prosecutor-General, Windhoek

Download