NO.: CA 40/2008
THE HIGH COURT OF NAMIBIA
In the matter
2010 June 11
2010 June 11
appellant and another appeared in the District Magistrate Court at
Okakarara on a charge of theft involving four cattle valued
N$8,000,00. They pleaded not guilty. In their plea explanation the
appellant said he did not steal or sell cattle belonging to the
complainant. Accused no. 2 said he did not know why he was reported.
After trial they were convicted and referred to the Regional Court
where they were each sentenced to ten (10)
years imprisonment of which four (4) years was suspended for five (5)
years on conditions of good behavior.
 The appellant,
who was accused no. 1 in the Court below now appeals against both
conviction and sentence.
matter came before this Court on the 11th
of June 2010. Appellant appeared in person while Adv. Campher
appeared for the respondent. Both accused were unrepresented in the
carefully considering arguments from both sides the conviction and
sentence were set aside (this included the accused no. 2 who did not
 The Court had
indicated at the time that the reasons for the ruling would follow
later. These are the reasons.
The facts of the
matter from the evidence placed before the District Magistrate at
Okakarara are as follows:
The complainant is
a certain Nagson Heuva. His stolen animals had the brand mark T151C
which were swallow tail, a snip and half moon at the left ear. Their
colours were grey, read and brown. This incident took place at his
cattle post at Orunahi.
complainant is the biological father of the appellant. He does not
know who took his cattle and was therefore unable to point a finger
to any person in his evidence. According to him the community told
him they have already interrogated the accused and they have
Rapingena is a family member of the complainant. He received a
report about stolen cattle. He counted them and found that four were
missing. He questioned the appellant about it, who, according
him admitted that
he stole one cattle belonging to the complainant. My
own underlining. This witness further told the Court that the
appellant reported to him that accused no. 2 stole three cattle. The
report further indicated that appellant sold the one cattle he stole
at Okandjatu. No light was shed on the other three cattle.
Karuaihe testified that on the request of the appellant and in the
presence of accused no. 2, he transported four cattle to an auction
at Okandjatu. According
to him these were accused no. 2’s animals,
my own underlining, and although no. 1 was also there, he does not
know anything about him. He was paid N$400,00 for the service. The
animals were heifers, red in colour but he could not remember well.
In cross-examination he said he could not testify as to whether the
cattle were stolen or not.
Kahere testified that the complainant’s cattle post is adjacent
to his and that while at Okandjatu he
saw four cattle that belonged to the home of the appellant.
My own underlining. He then referred the buyer, Manfred Tjizembua
Tjirare to the appellant.
However, the latter preferred to sell these animals at the auction
and not to any individual.
Maherero is a member of the traditional authority at Orunahi where
the two accused also reside. He testified that he knows them very
well and that he was present at the meeting of stock theft when the
two accused were questioned about the stolen cattle. After
the traditional authority concluded that the appellant was the one
who took the cattle to accused no. 2’s kraal so that the latter
could also organize transport.
My own underlining. In cross-examination, both accused denied
admitting to stealing any cattle.
will examine what the appellant and accused no. 2 admitted during
questioning at Orunahi traditional authority. According to the
witness Betel Rapingena the
appellant admitted that he stole one cattle belonging to the
and that accused no. 2 stole three cattle. My own underlining. This
admission by the appellant is in the Courts’ opinion a
confession. The Oxford Advanced Learner’s Dictionary of
Current English, Fifth Edition by A. S. Hornby, Editor: Jonathan
Crowther, Assistant Editors: Kathryn Kavanagh and Michael Ashby, at
page 240 defines the word, ‘confess’ and ‘confession’
… 1(a) – to something, doing something … to say
or admit, often formally, that one has done wrong, committed a crime,
… 1(a) a formal statement admitting that one is guilty of a
crime etc. to make a full confession of one’s crimes …”
v Msweli 1980(3)
at page 1162 E-F, the Court stated that:
test for the confession is well known. To be rated as such, the
statement of an accused person must amount to an unequivocal
acknowledgement by him that he is guilty of the crime in question.
This means, as I understand the authorities, that he has
unequivocally to admit all the circumstances which in law comprise
the elements of the offence, without any qualification recognized by
the law as a justification or excuse for his conduct.”
 It follows
that, the statement the appellant allegedly made to the Orunahi
traditional authority is an inadmissible confession because it lacks
compliance with both sections 217(1) and 219 of Act 51 of 1977
Admissibility of confession by accused. –
of any confession made by any person in relation to the commission of
any offence shall, if such confession is proved to have been freely
and voluntarily made by such person in his sound and sober senses and
without having been unduly influenced thereto, be admissible in
evidence against such person at criminal proceedings relating to such
Section 219 states
Admissibility of admission by accused. –
of any admission made extra-judicially by any person in relation to
the commission of an offence shall,
does not constitute a confession of that offence
and is proved to have been voluntarily made by that person, be
admissible in evidence against him at criminal proceedings relating
to that offence: Provided that where the admission is made to a
magistrate and reduced to writing by him or is confirmed and reduced
to writing in the presence of a magistrate, the admission shall,
upon the mere production
at the proceedings in question of the document in which the
admission is contained - …” My own underlining.
 The not
guilty plea explanation of the accused was a complete denial of all
the allegations made against them. Therefore, it is this Court’s
view, that the state had the onus to prove these allegations
contained in the charge which did not happen.
his submission before judgment the Prosecutor heavily relied on the
alleged admissions made to the traditional authority despite the fact
that they have been disputed during cross-examination. The
complainant did not see the alleged stolen animals at Okandjatu to
confirm that they were indeed his. A
state witness, Cosmos Karuaihe testified that he transported the
appellants’ cattle to the auction at
My own underlining.
 In his main
heads of argument counsel for respondent stated:
did not call any witness to verify his evidence.
5.3 Accused no. 2 did not testify.
is argued that this is crucial to the case of both appellant and
accused no. 2.
and accused no. 2 claims the cattle belongs to accused no, 2, but
accused no. 2 the alleged owner of the cattle remains silent.
accused no. 2 if it is claimed by appellant and accused no. 2
initially that it is his cattle must come and testify to that effect.
is crucial to the case of appellant and accused no. 2.”
 It is this
Courts’ view that there is no duty placed upon the accused to
testify or to say something especially where there is no allegation
connecting him to the offence with which he is charged, and to which
he would then be expected to furnish an answer.
v D and Another
1992(1) SA 513 at page 514F, Frank, J, quoting with approval from R
v Differd 1937
AD 370 at 373 stated:
is equally clear that no onus rests on the accused to convince the
Court of the truth of any explanation he gives. If he gives an
explanation, even if that explanation be improbable, the Court is not
entitled to convict unless it is satisfied, not only that the
explanation is improbable, but that beyond any reasonable doubt it is
 In all the
circumstances of this case the Court is satisfied that the respondent
lamentably failed to discharge its onus of proof to the requisite
standard in criminal matters; with the result that the appeal against
conviction and sentence must succeed.
 It was the
view of this Court that it will be an injustice to allow accused no.
2 to remain in prison solely for the reason that he did not appeal
this matter and Adv. Campher conceded with this approach.
the conviction and sentence for both accused were set aside.
APPELLANT: IN PERSON
BEHALF OF THE RESPONDENT: MR. CAMPHER
BY: THE OFFICE OF THE