Court name
High Court Main Division
Case number
CR 50 of 2020
Case name
S v Andrew (4) (Reasons for Order)
Media neutral citation
[2020] NAHCMD 307
Judge
Claasen J
Sibeya AJ

Claasen J ( concurring Sibeya AJ )

1. The accused in this matter  appeared and pleaded guilty in the District Court of  Karibib on a charge of Stocktheft considering section 11(1)(a) of the Act, No 12 of 1990 (the Act) to wit: that the accused stole a goat valued at N$ 1600-00.  After being questioned in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977 as amended (the CPA), the court convicted him and proceeded to sentencing. No previous convictions were proved and the court imposed a sentence of N$ 4 000.00 or 24 months imprisonment in default of payment.

2. The reviewing court addressed a query to the magistrate to call the magistrate’s attention to the outdated penalty clause that was incorporated in the charge annexure. The more pertinent question was whether it was proper for the magistrate to give a fine as a sentence in this matter.

3. In his reply the magistrate informed the court that the charge annexures are drafted by the prosecutor but he conceded that the penalty clause was outdated.

4. The magistrate gave the following explanation to the question of whether the imposition of a fine was proper: 

‘ As the mandatory sentence in section 14(1) of Act 12 of 1990 is unconditional and was stricken down by High Court in Daniel versus Attorney General and others; Peter versus Attorney General and others 2011(1) NR 330 (HC) and thus remains without any force and effect. Thus owing to the fact that accused is convicted under common law and his sentence now lies in the discretion of this court, and there is no penalty clause to be considered.’

5. With respect, in gauging the reply, it appears that the magistrate misunderstood the effect of the judgment in Daniel v Attorney-General & others; Peter v Attorney- General & others[1] on section 14 of the Act, which remains the valid penalty provision.

6. The magistrate’s impression that there is no penalty clause to be considered is misconceived.  Section 14(1) of the Act reads as follows:

‘Any person who is convicted of an offence referred to in section 11(1)(a), . . . that relates to stock other than poultry –

  1. of which the value-
    1. is less than N$500, shall be liable in the case of a first conviction, to imprisonment for a period not less than two years without the option of a fine;
    2. is N$500 or more, shall be liable in the case of a first conviction, to imprisonment for a period not less than twenty years without the option of a fine. ‘ 

(My emphasis)

7. In S v Tjiromongua,[2] the position regarding sentences in stock theft was made clear at paragraph 9 where the court held that the only sentence that may be imposed in a stock theft case is that of imprisonment regardless of whether the value is more or less than N$ 500.

8. The matter of S v Tjiveze[3] also provided useful guidance in respect of the sentencing regime of stocktheft matters.  In the case at hand section 14 (1)(a) (ii) of the Act finds application as no previous convictions were proved. In Tjiveze the applicable principles were stated as follows at paragraph 13:

‘ Cases where the value of the stock is N$500 or more, (s 14(1)(a)(ii)) and the accused is a first offender

2.1          The prescribed sentence is any period of imprisonment without the option of a fine, but not exceeding the normal sentence jurisdiction of the magistrate. 

2.2          Section 14(2) does not apply, ie the court is not concerned with substantial and compelling circumstances.

2.3 The court may wholly or partly suspend the period of imprisonment.’

9. For the above reasons the sentence of a fine that was imposed in this matter cannot stand and it is set aside.

10. I move from the sentencing to one last peculiarity in the matter, i.e. the magistrate’s notion that the accused was convicted in terms of the common law. That is simply untenable, as from the start it shows that the accused was charged in terms of legislation i.e. the Act and the applicable provisions for stocktheft, alternatively possession of suspected stolen property.

11. In the premises the order is as follows:

a)    The conviction is confirmed

b)    The sentence imposed is set aside and the fine, if paid to be refunded.

c)    The matter is remitted to the district court sitting at Karibib for sentencing afresh.

d)    The sentencing court must have regard to the period already served by the accused.

 

 

 

C CLAASEN

JUDGE

O S SIBEYA

ACTING JUDGE

 

 

 

 

 


[1] 2011 (1) NR 330 (HC).

[2] (CR 6/2013) [ 2013] NAHCMD 31 ( 05 February 2013).

[3] 2013 (4) NR 949 (HC).