v K HIHANGUAPO & 1 OTHER
of accused at close of prosecution case. Such order is appealable by
NO.: CA 93/97
THE HIGH COURT OF NAMIBIA
the matter between:
RESPONDENT SECOND RESPONDENT
HIHANGUAPO KLEINMAN DESIE
J. et MAINGA,
on: 2000.04.28 Delivered on: 2000.04.28
two respondents appeared before the Opuwo Magistrate's
charged with housebreaking with intent to steal and theft. They
pleaded not guilty and at the close of the State's case the
magistrate ruled that no prima facie case had been made out and
acquitted both. The State now appeal against their acquittal.
evidence led by the State falls within a fairly narrow compass.
Johannes Humu is employed as a driver and mechanic at the Government
Garage in Opuwo. He had one key to the garage while another was kept
by a person called Danger. On 4th
July, 1997 Danger was on leave and Humu testified that Danger's key
was in the possession of the second respondent. On that day Humu
collected two tyres and inner tubes from Ruacana and in the afternoon
handed them over to the second respondent who placed them in the
office at the garage. The story is then taken up by Sakeus Kamatuka,
a security guard employed by the Minstry of Works and Transport. At
about 2 am on Saturday, 5th
July, 1997 he was on patrol in Opuwo and came to the Government
Garage. He found the two respondent's pulling a hydraulic jack from
the garage. When asked to explain the first respondent said that he
had forgotten his keys and had come to collect them. On entering the
garage Kamatuka saw one tyre and inner tube. The police were then
called. A third State witness was Joao Laranja. He said that at about
2 am on 5th
July, 1997 he was at a certain bottle store with other people
including the second respondent. The second respondent asked him if
he could use his car in order to fetch some money from home and he
lent his car to the second respondent. However, the second respondent
did not return. At about 4 am he went to the police station to report
the matter and found both his car and the second respondent who was
under arrest. There was a new tyre inside the car which had not been
there when he lent the car to the second respondent.
to the evidence of Kamatuka, he said that he met up with Halandja at
the police station and he was looking for his car. "Halandja"
is obviously a misprint for "Laranja". On returning to the
Government Garage he, Kamatuka, found the car behind the garage and
inside it was a tyre and an inner tube. Kamatuka said that the tyre
and tube belonged to the Government Garage.
his evidence Humu said that the second respondent had the right to
give permission for goods to be removed from the Government Garage.
It was this piece of evidence which led the magistrate to acquit the
respondents at the close of the State's case. Apparently, the
magistrate was of the view that the two respondents may simply have
been removing the jack, the tyre and the tube in order to use them
and then return them. When it is borne in mind that the removal was
taking place at 2 am on a Saturday morning this view cannot possibly
have any real foundation unless, perhaps, the two respondents were
able to give some explanation for such extraordinary behaviour.
the State's case was presented rather poorly I am of the view that a
was made out and that the magistrate erred when ruling otherwise.
Verhoef, who appeared for the State before us, also submitted that
the magistrate erred by not giving the prosecutor an opportunity to
address him before making the ruling that no prima
case had been made out. Clearly there is substance in this submission
but in view of the conclusion I have reached on the facts of the case
it is unnecessary to consider the effect of this irregularity.
Verhoef was also invited by the Court to deal with the question
whether the grant of a discharge to an accused is appealable. This
invitation was extended to counsel because of the following statement
on the Criminal Procedure Act
by Du Toit et al at 22 -30:
decision as to whether to refuse or grant a discharge is a matter
solely within the discretion of the presiding officer and may not be
questioned on appeal."
is then made to R
v Lakatula and Others
1919 AD 362 and R
1938 AD 556.
Ms Verhoef correctly submitted these two cases do not deal with the
of a discharge but with the refusal
of a discharge. Counsel submitted that different principles apply in
the case of the former and in support of this submission referred us
- General Venda v Molepo and Others
1992(2) SACR 534(V). In that case the Court held that a decision to
grant an application for the discharge of the accused at the end of
the State's case in terms of section 174 of the Criminal Procedure
Act, No 51 of 1977, is appealable and for the reasons given by Le
Roux CJ in his judgment I respectfully agree. In fact there are at
least two reported judgments of this Court where appeals were allowed
where orders for discharge were wrongly made at the close of the
prosecution case. See S
v Van Den Berg
1995 NR 23; S
1995 NR 80.
have been informed by counsel that the magistrate who tried the case
against the two respondents is no longer on the bench and it would
therefore be a fruitless exercise to
the case for a continuation of the trial. The case will have to be
commenced de novo.
the foregoing reasons the appeal is allowed, the order made in the
court a quo
that the two respondents are found not guilty and discharged is set
aside and the case is remitted to the Magistrate's Court for the
trial to commence de novo.