Court name
High Court
Case number
CA 31 of 2009

S v Neshila (CA 31 of 2009) [2011] NAHC 283 (23 September 2011);

Media neutral citation
[2011] NAHC 283
Liebenberg J
Tommasi J


CASE NO.: CA 31/2009



In the matter between:





Heard on: 27/05/2011

Delivered on: 23/09/2011


[1] This is an appeal against
conviction and sentence. The appellant was convicted in the district
court of theft read with provisions of section 11(1)(a) 1, 14 and 17
of the Stock Theft Act
as amended
after pleading not guilty. The
appellant was committed for sentence in the regional court. The
regional court sentenced the appellant to twenty (20) years
imprisonment and suspended five (5) years thereof for a period of
five years on condition that the appellant is not convicted of the
same offence committed during the period of suspension. The appellant
was unrepresented in both courts.

[2] The appellant noted the
appeal against conviction and sentence out time. The appellant filed
an affidavit explaining that he did not understand what it meant to
appeal. The respondent did not oppose the appellant’s
for condonation and conceded
that the matter should be determined on the merits in respect of the
conviction. Counsel for the appellant however pointed out in her
argument that an irregularity occurred during the sentencing
procedure and that the conviction and sentence ought to be set aside
on this basis alone.

[3] The magistrate in the
district court in her judgment did not give reasons for the
conviction and merely indicated that the appellant was guilty as
charged. The regional court magistrate however had the opportunity to
exercise his discretion to determine whether the proceedings in the
district court were in accordance with justice and if, in his
opinion, there was any doubt, should have referred the matter to this
Court for review as provided for in terms section 116(3).

[4] The appellant was
unrepresented in both the district and the regional court. When the
appellant appeared before the regional court for sentence, the
regional court made the following remarks:

a few procedural or evidential defects the court is satisfied that
the accused person was properly convicted of theft”

The regional court magistrate
did not stipulate what the procedural and evidential defects in the
proceedings were. Having expressed doubts as to whether the
proceedings were in accordance with justice, the appropriate cause of
action under these circumstances was to transmit the record and his
reasons to this Court for review. Two vitiating irregularities were
apparent from the record and the regional court magistrate, despite
the doubt he expressed that the proceedings were in accordance with
justice, failed to transmit the record for review.

[5] The appellant was charged
with having stolen four cattle that were in the care of Moses Thomas
who was tasked by the regional authority council to take care of lost
cattle. The appellant essentially did not dispute that three of these
cattle were found in his kraal and that one was recovered from the
kraal of WaVili where he left it. When testifying under oath
the appellant testified that the 8 cattle belonging to WaVili were
brought to Onamavo village by a certain Benny as they were destroying
his mahango fields. He recognised one head of cattle and its calf as
belonging to a certain Mr Leonard and another head of cattle followed
him as he drove the cattle to Omutele. The appellant testified that
he intended to return the three cattle as he confirmed that the one
head of cattle and the calf did not belong to Mr Leonard. Both WaVili
and Mr Leonard apparently shared a post with the appellant. He left
some cattle behind at Onamavo as he did not know who they belonged

[6] No reliable evidence was
adduced by the State that the appellant removed the cattle from the
kraal of Moses Thomas in whose care it was. Two witnesses however
testified that the appellant had driven cattle from Onamavo village.
One of the witnesses confirmed that the appellant drove his own
cattle as well as those not belonging to him from Onamavo village.
This witness confirmed that he saw cattle of WaVili at Onamavo
village but could not say who brought them there. The second witness
confirmed that Benny brought the cattle of WaVili to Onamavo. Both
witnesses testified that the appellant left some of the unbranded
cattle at Onamavo.

[7] After the appellant
testified he requested the State to help him to call his witness
Benny Indonguzu of Onumavo village. The matter was postponed several
times in order to secure the attendance of this witness. The record
reflects that a subpoena was issued. The State prosecutor informed
the court that the investigating officer subpoenaed the defendant’s
witness; that he was in possession of the subpoena; and that the
witness failed to attend court. The magistrate asked the appellant
how he wished to proceed. The appellant asked for a postponement in
order to secure the attendance of this witness. On the adjournment
date the appellant informed the magistrate that he was unable to
secure the attendance of his witness despite the fact that he wrote a
letter to him. After two attempts to convey to the magistrate that he
required this witness to be present, the appellant simply gave up on
the third attempt and informed the court that the matter may be
finalised without the witness.

[8] The magistrate had a
discretion in terms of the provisions of section 188(2) read with
section 170(2), to issue a warrant for the arrest of this witness
after he had failed to appear at court on the date provided for in
the subpoena. Instead of exercising this option, the magistrate opted
to find out from an unrepresented accused how she should proceed. The
appellant was not informed that such a course was available to the
magistrate in order to request that such a warrant be issued. The
testimony of this witness was crucial to the defence of the
appellant. The failure by the magistrate to inform the accused of the
provisions of section 188(2) in order to secure the attendance of
this witness prejudiced the appellant in presenting his defence to
the court.

[9] After the appellant
informed the court that he was unable to secure the witness’
attendance and that the case may be finalised the following

Apply acd be found guilty and convicted as charged.

Judgment: Guilty as charged”

It is apparent from the record
that the appellant was not afforded the opportunity to address the
court after all the evidence had been adduced as provided for in
section 175. This was a serious irregularity. (See
v KHOEINMAB 1991 NR 99 (HC
where O’Linn J as he then was, at page 101 stated that:

The accused has the
right to address the Court, regardless of his prospects of success.
Such an irregularity destroys the fairness of the trial and must be
regarded as a gross irregularity.

[10] The cumulative effect of
the irregularities is such that it deprived the appellant of a fair
trial and justice demands that the conviction and sentence be set

[11] In the premises the
following order is made:

1. The application for
condonation for the late noting of the appeal is granted;

2. The appeal against
conviction and sentence is upheld and the conviction by the district
court and sentence imposed by the regional court are hereby set



I concur



12 of 1990

Theft Amendment Act 19 of 2004