REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION
Case No: CA 56/2011
In the matter between:
MATHE ERIC …...............................................................................................APPELLANT
THE STATE …..............................................................................................RESPONDENT
CORAM: NDAUENDAPO, J et SHIVUTE, J
RESERVED ON: 31 October 2011.
 NDAUENDAPO, J: On 22 November 2010, the appellant was convicted in the Magistrate’s Court at Luderitz of theft of an engine. He was sentenced to 3 years imprisonment of which 6 months were suspended for 5 years on condition that he is not found guilty of theft within a period of suspension. He now appeals against his conviction and sentence. The appellant is represented by Mr. Tjombe who is acting Amicus curiae (the court wishes to thank Mr. Tjombe for his assistance). The respondent is represented by Ms. Husselman.
 In his notice of appeal, the only ‘ground’ of appeal is stated as follows: ‘the learned magistrate erred in law and on the facts to convict the appellant in that the state failed to prove beyond reasonable doubt that the appellant committed the offence of theft.’ Ms. Husselman raised a point in limine and submitted that the notice of appeal does not comply with rule 67(1) of the rules of the Magistrate’s Court in that it does not properly and clearly set out the grounds of appeal against conviction as required by the rule. She referred this Court to the case of Gotfriend Kuhunga and Another v the State (unreported judgment of this court delivered on 18 November 2004 by Mainga J).
 The following witnesses testified for the state: Andrias Radford testified that he was employed by Transnamib as chief vehicle maintenance officer and was responsible for all the maintenance of vehicles of TransNamibia in the South of Namibia. He knew the accused persons. On a Sunday a report was made to him about a missing engine of a bus. On Monday he travelled to Aus and upon his arrival he noticed that an engine which was supposed to be in a truck with registration no: N9831W was missing. He testified that the engine was a 350 turbo Mercedes Benz engine. He proceeded to the police station and laid a charge of theft and thereafter proceeded to Keetmanshoop. The next day, being the Tuesday, a police officer by the name of John called him and told him that the missing engine was found and that he must travel to Luderitz to identify the engine. He travelled to Luderitz and found the engine in the truck of a certain JJ and he identified the engine by the engine number. He further testified that the engine was worth about N$ 60 000.00 at that time. The record, under his evidence further indicates the phrase: ‘inspection in loco – exhibit ‘A’ – photo of engine without any evidence being led about an inspection in loco.
 Although the charge sheet indicates the engine number as MC010375A0437765, the witness did not testify about the number of the engine. That omission was fatal to the state’s case. The only way the witness could identify the engine (according to him) was by the engine number and in the absence of the witness testifying about the number, the court a quo was in the dark as to whether the engine he identified in the truck was indeed the stolen engine with number MC 010375A0637765 as per the charge sheet. The court a quo could not objectively verify that the engine found was the stolen engine by the mere say so of the witness in the absence of evidence about the number of the engine. In addition the witness did not identify the engine on any other feature except the engine number and therefore it was critical to testify about the number of the engine.
 To compound matters for the state, the evidence about the inspection in loco was incomprehensible. On that score, the record reflects the following: “inspection in loco – Exhibit ‘A’ – photo of engine”. There is no evidence before court to show when an inspection in loco was conducted, by whom, and who was present and what was inspected. As far as ‘exhibit A: photo of engine’ is concerned there is no evidence as to who took the photograph and whether the engine depicted on the photograph was indeed the alleged stolen engine. The trial record is silent in respect of observations made of the inspection in loco and no witnesses were called to testify about the inspection in loco.
 Mr. Tjombe referred this court to various authorities dealing with inspection in loco. In R v Holland 1950 (3) SA 37(C) at 40A-B the court held that:
‘Now when an inspection is made by a presiding judicial officer the object of that is not merely, as the magistrates suggests, to get a general idea of the terrain to enable him to understand the evidence, but it is also to enable the presiding judicial officer to see and note in regard to matters which either input be agreed upon or be in controversy, as the case may be, and it is very important that these matters should be embodied in the record. Not only does that prevent subsequent disputes but in the event of the case going further, the court of appeal then has the benefit of the notes.’
 In Kruger v Ludick 1947(3) SA 23(A) the court held that:
‘Inspection in loco has become a recognized part of our legal system both in civil and criminal cases. It is important when an inspection in loco is being made, that the record should disclose the nature of the observations of the court. that may be done by means of a statement framed by the court and intimated to the parties who should be given the opportunity of agreeing with it or challenging it and, if they wish, of leading the evidence to correct it. Another method, which is sometimes convenient, is for the court to obtain the necessary statement from a witness who is called or recalled after the inspection has been made. In such a case, the parties should be allowed to examine the witness in the usual way.’
From these authorities, it s clear that the correct procedures were not followed when the inspection in loco was conducted. The record is silent on when the inspection in loco was conducted, who was present and whether the engine depicted on ‘Exhibit A was indeed the stolen engine.
 Shambeeni Hamukwaya testified that he was employed as a driver by JJ during the period of March 2007. He testified that he drove JJ’s truck when it broke down. Hamukwaya accordingly told one Tangeni Toivo Shiimi about the truck who thereafter went to call accused 1. He brought accused 1 who looked at the truck and managed to fix the truck by removing a part from the truck to enable Hamukwaya to drive the truck up to Luderitz. JJ then instructed him the next day to go to Aus and fetch certain things that belonged to JJ from Eric. Upon his arrival in Aus, he got hold of accused 1 who told him to accompany him and to help him load the engine from a nearby yard. According to Hamukwaya, Eric was in the company of 3 other people. The engine and other things and a block were then loaded on the truck. He further testified that accused 1 and accused 2 came to install the engine at JJ’s house. During his evidence he was not shown the engine in court or a photograph of the engine to identify the engine as the one loaded on his vehicle. Mr. Tjombe correctly submitted that Hamukwaya did not testify nor was he asked by the court who ‘Eric’ was. It cannot simply be assumed from his testimony that ‘Eric’ and the ‘accused’ is one and the same person, particularly since his testimony clearly shows that there were 3 three persons at the scene, and the word ‘accused’ in English is both singular and plural. Thus fueling more speculation whether or not he referred to accused 1 or accused 2 or to both: it would have been a small, but significant question to ask the witness to confirm if Eric he referred to is in court or not.
 The appellant exercised his right to remain silent and did not testify nor did he call any witness.
 Having analyzed the evidence on which the appellant was convicted, I come to the conclusion that the conviction cannot stand. Although I agree with the submissions by Ms Husselman that the notice of appeal does not fully and clearly set out the grounds of appeal as required by rule 67(1) of the Magistrate’s Court Rules, the evidence on which the magistrate convicted the appellant is so weak that in all fairness, this Court cannot allow it to stand. At the end of the day, it is the duty of the state to prove the guilt of the appellant beyond reasonable doubt and where the evidence does not support a conviction beyond a reasonable doubt, this Court is duty bound to set the conviction aside. That is what fairness and justice demand.
 In the result, the appeal succeeds and the conviction and sentence are set aside.
COUNSEL ON BEHALF OF THE APPELLANT: Mr. Tjombe
INSTRUCTED BY: Norman-Tjombe Law Firm
COUNSEL ON BEHALF OF THE RESPONDENT: Ms. Husselman
INSTRUCTED BY: Office of the Prosecutor-General