IN THE HIGH COURT OF NAMIBIA
MANYARARA, AJ et HINRICHSEN A.J.
21 December 2007
In this matter the Divisional Magistrate of Keetmanshoop requested this Court by way of special review in terms of Section 304 (4) of the Criminal Procedure Act to correct the error committed by the Regional Court Magistrate while presiding in the District Court in the district of Keetmanshoop. The error was the sentence which that Magistrate imposed namely 20 (twenty) years imprisonment of which 18 were suspended for 5 (five) years subject to the usual conditions. In doing so the Magistrate exceeded the sentencing jurisdiction of the District Court.
The Divisional Magistrate Keetmanshoop A.M SIBOLEKA rightly pointed out in his request to the Registrar of this Court that the section under which the accused was sentenced exceeds the jurisdiction of the District Court. The Section is Section 14(1)(a) (ii) of the Stock Theft Amendment Act 12 of 1990 as amended by Act 19 of 2004.
The Section reads as follows:-
of which the value –
The fact that the Presiding Magistrate in this matter exceeded the jurisdiction of the Court is reason enough to set the sentence aside and substitute it with a competent sentence.
However there is another important aspect which this Court has to take into consideration. The recorded proceedings relating to the stage leading to the conviction of the accused on his plea of guilty reveal the following questions and answers as regards the value of the stock, in this case a goat, which the accused stole.
Question – Do you dispute that value?
The impression one has when reading the record is that the accused heard the prosecutor mentioning the value of the stolen goats when reading out the charge sheet. Therefore, when the accused was asked whether he knew the value of the goat, he simply answered " It is N$ 700,00 ". It seems that the Magistrate had the same impression because he was not satisfied with the answer. He therefore continued to ask " Do you dispute the value?" to which the accused replied " No, I do not dispute it"
It is not sufficient to inquire whether the accused " disputes" an allegation i.e. the charge sheet or not. Section 112 (1) (b) of the Criminal Procedure Act No. 51 of 1977 requires that the Magistrate "shall…. question the accused with reference to the alleged facts of the case in order to ascertain whether he admits the allegations in the charge to which he has pleaded guilty." Not disputing an allegation does not necessarily mean admitting the allegation. As was stated in S vs Baadjie 1991 (1) SACR 677 (0) 679 a:
I bear in mind that the value is not an element of the crime itself but it is a material jurisdictional fact when it comes to sentence, because it could mean the difference between a sentence of two years imprisonment and a sentence of twenty years imprisonment.
The record p 3 states " Right before Plea explained to the accused in terms of Annexure "B" – Annexure "B" was not included in the record at the time this judgment was first written. Unfortunately it took some time before this omission was rectified. As it now turns out Annexure "B" does not only explain to the accused his constitutional right to be defended by a legal practitioner, it also expressly quotes the wording of the relevant section of the Act.
However It is all very well to have the highly technical and complicated Stock Theft legislation simply quoted in terms of Annexure "B" to an undefended and uneducated accused . In this case the Court and the prosecution should pertinently have instructed the accused of the importance of the value of the goat in this borderline situation.
There is an enormous difference between the compulsory sentence provided for in Section 14 (1)(a)(ii) quoted above which imposes a sentence of not less than 20 years and Section 14(1)(a)(i) which provides that if the value of the stock stolen is less than N$500,00 the person concerned 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.
Applied to this case the difference of N$200,00 i.e. between the amount ofN$500,00 and N$700,00 is 18 (eighteen) years imprisonment. It is not the task of this Court to judge on the merits and demerits of the underlying legislation. The difference in the gravity of sentence between stock valued below N$500,00 and stock valued at or above N$500,00 was not sufficiently and pertinently pointed out to the accused at any stage of the proceedings. It seems as though the value of N$700,00 was casually placed on the stolen stock by the accused and accepted as such by the Court a quo without any expert evidence which would have been essential in this case. A legal practitioner defending the accused in this matter would and should probably have advised his client to make an issue of the valuation of the stolen stock.
Furthermore the Magistrate erred in not finding that there are obvious substantial and compelling circumstances in this case as envisaged in Section 14(2) of the Stock Theft Amendment Act No 19 of 2004 which justify the imposition of a lesser sentence than the sentence prescribed in sub-section 1(a) or (b) of Section 14.
Instead the Magistrate took into account the Prosecutor’s plea in aggravation treating the offence as very serious yet paradoxically considering that the accused was a first offender who did not waste the Court’s time and who offered to compensate the complainant. The record states that the Magistrate considered that the accused had “shown contribution” whatever that may mean presumably indicating that the accused showed remorse.
Speaking of the record it reveals an alarming scarcity of information relating to the accused’s circumstances and illustrates the shortcomings of the proper presentation of mitigating circumstances of an accused appearing undefended.
There are further substantial and compelling circumstances:-
The complainant received back the meat of the goat slaughtered and stated that he was in serious financial difficulty not being able to cope with expenditures mainly because he was at that stage unemployed.
Being aware of the illegality of his deed he approached his mother with a request that the complainant be compensated although this was linked to a condition that the case be withdrawn against him. He stated that he had one child and was in arrears with that child’s school fees.
This Court is supported in its decision to consider and accept that substantial compelling circumstances exist by reference to the unreported case of The State vs Victor Mbishi Mishe, case no. CR 101/2006 decided in this Court. (The Mishe case). Similar circumstances existed in the Mishe case wherein the accused was never informed that he was facing a prescribed minimum sentence. The circumstances were that the accused in that case also pleaded guilty to a charge of theft in terms of the Stock Theft Act No 12 of 1990 having stolen a goat valued at N$250,00. He was unemployed.
In the Mishe case Liebenberg AJ also criticized the scarcity of facts on record. He states in paragraph 
And again in his plea for mitigation the accused repeats the proposed deal with the complainant on the latter’s initiative ( record p 7)