Court name
High Court
Case number
CA 105 of 2009
Case name
Nanyemba v S
Media neutral citation
[2011] NAHC 68

















CASE
NO.: CA 105/2009



IN
THE HIGH COURT OF NAMIBIA






HELD
AT OSHAKATI



In
the matter between:


ANANIAS
NANYEMBA

….........................................................................................
APPELLANT


and


THE
STATE

….........................................................................................................RESPONDENT












CORAM:
LIEBENBERG
J & TOMMASI J







Heard
on: 17/09/2010; 24/09/2010 &01/10/2010 Delivered on: 11 March
2011












APPEAL
JUDGEMENT


TOMMASI
J:

[1]
The appellant noted an appeal against both the conviction and
sentence imposed in the Magistrate's Court for the district of
Ondangwa. The appellant was convicted of housebreaking with intent to
steal and theft and sentenced to four (4) years imprisonment of which
one (1) year was suspended for 5 years on the normal conditions. The
value of the items stolen was N$21 040.30.







[2]
The appellant was represented by Ms Mainga who appeared
amicus
curiae
and
the respondent by Mr Shileka.











[3]
The respondent raised the following points
in
limine:



(a)
The appellant's grounds of appeal do not comply with the requirements
of rule 67(1) of the Rules of the Magistrate's Court, since they are
vague and general.



(b)
There has been non compliance with Rule 67(3) of the Rules of the
Magistrate's Court; and



(c)
the record was not complete.











[4]
The respondent abandoned the latter two points
in
limine
after
it transpired that the record was in fact complete; and the
Magistrate complied with the provisions of Rule 67(3) of the
Magistrate's Court Rules.











[5]
The grounds of appeal in essence only deal with the appellant's
dissatisfaction with his conviction and no grounds of appeal in
respect of sentence are contained in the Notice of Appeal. As such,
no appeal lies against sentence. Counsel for the appellant
furthermore did not pursue the appeal in respect of the sentence. In
view of the afore-mentioned there is no need for this Court to
consider the appeal against sentence.



[6]
The grounds as set out by the appellant are indeed general and vague.
Ms Mainga conceded that most of the grounds are vague and general but
contended that there are two grounds that were set out with
reasonable particularity. These grounds are the following:




  1. that
    the appellant was not informed of his right to legal representation
    and that this was a gross irregularity that infringes on the
    appellant's right to a fair trial. Counsel referred the court to
    S
    v Kau and Others 1995 (NR) 1 SC
    in
    support of this submission; and



  2. that
    the appellant should have been convicted of possession of goods
    suspected to have been stolen instead of housebreaking with the
    intent to steal and theft.












[7]
The above two grounds, taking into consideration that the appellant
was not assisted by a legal practitioner, contains sufficient
particularity and will therefore be considered by this Court.











[8]
The record reflects that the appellant was not advised of his
constitutional right to be represented by a legal practitioner of his
choice or that he could apply to the Directorate of Legal Aid if his
means are inadequate, to enable the Directorate to engage a legal
practitioner to assist and represent him. The failure of the
Magistrate to inform the appellant, who was unrepresented at the
time, of his right to legal representation was an irregularity that
infringes on the appellant's right to a fair trial. The respondent
argued that this error does not vitiate the entire proceedings since
the appellant suffered no prejudice. Whether this irregularity
vitiated the proceedings need to be determined on the facts of this
case.







[9]
In
S
v Kau and Others(supra)
Dumbutshena
AJA with the concurrence of Mahomed CJ







and
Chomba AJA stated the following:







'In
Namibia the right to be defended by a lawyer of one's choice is a
constitutional right. When the trial magistrate failed to inform the
appellants of this right he deprived them of their constitutional
right. Because the right is given to the people by the Constitution,
it is the duty of judicial officers to inform those that appear
before them of their right to representation. There, of course, will
be exceptional cases. A lawyer who appears before a judicial officer
is expected to know his right to legal representation. There are many
such other people, educated and knowledgeable who need not be
informe
d.
If they do not know, they must be informed."

(my
emphasis)











[10]
In
S
v Bruwer 1993 NR 219 (HC)
at
Strydom JP, as he then was, stated at 223D:







'I
am also mindful of the fact that reference in our Constitution to a
fair trial forms part of the Bill of Rights and must therefore be
given a wide and liberal interpretation. However, I fail to see how
it can be said, even against this background, that a trial will be
less fair if a person who knows that it is his right to be legally
represented is not informed of that fact.
Whether
the _ fact that an accused was not informed of his right to be
legally represented, resulted in a failure of justice is, as in most
other instances where a failure of _justice is alleged, a question of
_fact.
'
(my emphasis)











(See
also
S
v FORBES AND OTHERS 2005 NR 384 (HC))











[11]
From the record it is apparent that the appellant was aware of his
right to be represented. The complainant and the police, on the
strength of information received, wanted to search the premises where
they found the appellant. The appellant refused them entry to the
premises. He informed them that he was not the owner of the premises
and that he would not allow a search of the premises. He promptly
called his lawyer to speak to the concerned police officer. If the
appellant knew that he could call upon his legal practitioner to seek
advice in respect of his rights under these circumstances, then it
cannot be said that he did not know of his right to be legally
represented at the trial, or for that matter at any stage during the
proceedings.







[12]
Despite the above, the appellant at no time requested the court to
allow him time to obtain the services of a legal practitioner. The
matter was postponed several times after the appellant was released
on bail during which time the appellant could have obtained the
services of a legal practitioner. The charge faced by the appellant
was a simple one of housebreaking with intent to steal and theft. It
cannot under these circumstances be said that there was a miscarriage
of justice.











[13]
Counsel for appellant argued that the appellant should have been
convicted of being 'found in possession of suspected stolen
property'. The issue to be determined is whether the facts before the
court
a
quo
supported
a conviction of housebreaking with the intent to steal and theft or
any competent verdict thereof.











[14]
The complainant testified that she discovered during the early hours
on 7 July 2007 that her place was broken into and items valued at
N$21 040.30 were stolen. The items listed were cash, recharge
vouchers, various food items, 9 pairs of shoes (one pair was made of
springbok leather), clothing items (not specified), 15 tops , 5
trousers and 2 jackets (specified), 3 door locks; 14 bags, 1 cash
register and one electronic cash till. These allegations were not
disputed and it was therefore common cause that the offence of
housebreaking with intent to steal and theft was committed. The
appellant disputed that he was the person who committed the offence.











[15]
When evaluating the evidence the court
a
quo
accepted
the evidence of the complainant that she saw the appellant wearing
leather sandals; that the appellant was acting suspicious when
confronted by the police at the house where the stolen goods were
found and; accepted the testimony of a witness who testified that the
appellant sold her shoes as credible. The court
a
quo
found
that the appellant was in possession of the two pairs of sandals and
the recovered items and inferred from his failure to explain how he
obtained these items and his recent possession of the stolen items
that he was guilty of the offence of housebreaking with the intent to
steal and theft.











[16]
According to the complainant she received information about the
whereabouts and identity of a person selling some of her belongings
on Saturday, 8 July 2007. She reported this to the police and they
went to the house pointed out to the complainant at around 20H00.
They found the appellant at the premises, who refused the police
officer entry to the premises, despite the fact that he was advised
by the police officer that he was entitled to search the premises
without a warrant. The appellant locked the door and called his legal
representative who spoke to the police officer. The appellant did not
dispute that he was found at the house where the stolen items were
later recovered and that he refused entry to the house. His refusal
was based on the fact that the police did not furnish him with a
search warrant; and he did not want to consent, as the house did not
belong to him.











[17]
The appellant may have been well within his rights to have refused
the police entry to the house without a search warrant, given the
fact that he could not give lawful consent to search someone else's
premises.. The fact that he refused consent to search the house
cannot therefore be taken into consideration in determining the
culpability of the appellant.



[18]
The complainant testified that she recognised her sandals made of
springbok leather which the appellant was wearing at the time. She
indicated that it was a size 8 or size 9 shoes. The appellant
cross-examined the complainant in respect of the sandals he was
wearing but she was adamant that she saw him wearing the sandals at
the time. The appellant did not address the issue of the sandals he
was wearing, in his examination in chief; but in cross-examination
confirmed that he was wearing open sandals. He however denied that it
belonged to the complainant. The complainant gave a clear description
of the stolen items upon discovering the theft thereof and later
identified the items recovered by ticking them meticulously off the
list. It is unlikely that she would make a mistake in identifying her
sandals. Given these facts, the court
a
quo
correctly
found that the complainant's evidence in respect hereof was reliable.











[19]
The complainant testified that the appellant grabbed her by her
collar. The police officer testified that the appellant tried to
assault the complainant and he tried to restrain him. The appellant
walked away and refused to stop when requested by the police officer
to do so. The appellant's explanation as to why he left the house was
that the police told him to leave. The appellant also testified that
"I
left
and told them to come later"
after
he called his lawyer. The appellant did not run away but casually or
"truantly"
walked
away. The complainant testified that the appellant ran away. There
was no credible evidence to support the fact that the accused left
"in
a
huff
'"as
was found by the court
a
quo.
The
appellant who was, according to his own version, sleeping at the
time, decided to leave the house. This is indeed strange but a host
of reasons may be advanced for the appellant doing so other than that
the one that he had something to hide. This fact, to my mind, does
not support the inference drawn by the court
a
quo.







[20]
The police officers broke the door to gain entry and found a box
containing three bags of clothing listed as items stolen, in the
house. The owner of the house testified that she left her place on 7
July 2007; locked the door and kept the key above the door for her
young ward to use the house; and returned on 10 July 2007. She
testified that she had been in a past relationship with the appellant
although the appellant maintained that the relationship still
existed. She denied having any knowledge of the items found in her
house. The court
a
quo,
treating
her evidence with caution, still found her evidence to be
satisfactory and stated that even without her evidence he would reach
the same conclusion. The appellant was the only occupant of the house
at the time. The owner was not present at the time and it was not
disputed by the appellant that she was not at home at the time he
arrived at her place. The appellant did not dispute that the stolen
items were found in the house after he had left but denied having
knowledge thereof i.e being in possession thereof.











[21]
A further witness for the state testified that she was sold a size 5
pair of leather sandals by the appellant during July 2007. The
appellant denied that he sold shoes to this witness. The court
a
quo
found
this witness to be confident and accepted her evidence. The appellant
averred that the witness conspired with other witnesses to implicate
him, but gave no reason why this witness would want to implicate him.
This Court finds no reason to interfere with the credibility finding
of the court
a
quo
in
respect of this witness.











[22]
Although the court
a
quo
did
not directly make a credibility finding in respect of the appellant,
it was clear that it rejected the appellant's version that he did not
know that the stolen items were in the house and that he was not
involved in the offence at all.



[23]
This Court is satisfied that the court
a
quo
correctly
found that the appellant was in possession of two pairs of shoes
forming part of the items stolen from the complainant. Given the
appellant's denial, the Court has to consider all the proven facts to
ascertain whether the State proved beyond reasonable doubt that the
appellant was in possession of items recovered from the house.











[24]
The sandals found to have been in possession of the appellant, were
part of items that were proven to have been stolen. The appellant was
the sole occupant of the premises during the period after the crime
was committed and just before it was recovered. The only reasonable
inference to be drawn from these facts is that the appellant had
knowledge of the other items in the house and by being the only
occupant at the relevant period, had exercised control over it. The
court
a
quo
therefore
correctly inferred that the appellant was in possession of the
sandals and the items recovered in the house.











[25]
In order to arrive at a conviction of the offence of housebreaking
with the intention to steal and theft, the court
a
quo
applied
the doctrine of recent possession.











[26]
In
S
VKAPOLO 1995 NR 129 (HC)
at
130D - F, Strydom JP (as he then was) stated the following:



"It
is correct that where a person is found in possession of recently
stolen goods and has failed to give an explanation which could
reasonably be true, a court is entitled to infer that such person had
stolen the article or that he is guilty of some other offence. (See



Hoffmann
and Zeffert The SA Law of Evidence 4th ed at 605 - 6.) I also agree
with the magistrate that there are instances where a lapse of 14 days
or longer was still regarded as recent possession. The test to be
applied in this regard was laid down in R v Mandele 1929 CPD 96 where
the following was stated at 98, namely:



'…..is
the article one which could easily pass from hand to hand, and was
the lapse of time so short as to lead to the probability that this
particular article has not yet passed out of the hands of the
original thief? '



This
dictum was approved on many occasions and again by the South African
Appeal Court in S v Skweyiya 1984 (4) SA 712 (A) at 715E. C











[27]
The period
in
casu
was
not even two full days after the commission of the offence. This, by
any standard, was recent possession. The nature of the items however
need also be considered. Although the items individually can be
easily passed from hand to hand, it would be more difficult for three
bags of clothing to exchange hands within such a short period,
particularly given the value thereof. The springbok leather sandals
were valued at N$300.00 and the shoes were sold for N$100.00 at an
open market. The total value, according to the complainant's list of
the three bags of clothes recovered was approximately N$7260.00. The
quantity and the value of these items make it unlikely that it could,
within such a short period of time, have left the hands of the person
who broke into the shop of the complainant and stole the items. The
appellant's possession was recent enough to draw the inference that
he was the person who broke into and stole the complainants goods as
listed and court
a
quo
therefore
correctly convicted the appellant of housebreaking with the intent to
steal and theft.



[28]
No proper grounds of appeal against sentence were advanced to be
considered and the appeal against sentence was not pursued by counsel
for the appellant.















[29]
In the result:







the
appeal against conviction is dismissed.
















TOMMASI
J




























I
concur































LIEBENBERG
J




9