Court name
High Court
Case number
40 of 2012

S v Mulalehi (40 of 2012) [2012] NAHC 175 (04 June 2012);

Media neutral citation
[2012] NAHC 175
Parker J
Shivute J



NO.: CR 40/2012

the matter between:





R/C NO.: 02/2011)


Delivered on: 2012
June 04


[1] This
matter was referred to me for special review in terms of section 116
of the Criminal Procedure Act.

[2] The
accused was charged in the Magistate’s Court with the offence
of theft read with the provisions of the stock theft Act, Act 12 of
1990 as amended and convicted of theft of stock valued at N$1500.00.
The matter was transferred to the Divisional Court for sentencing.

[3] After
the Regional Magistrate perused the record he was not satisfied that
the state had proved its case beyond reasonable doubt against the
accused because the verdict of guilty was not supported by the
evidence and he requested the conviction to be set aside.

[4] The learned
Divisional magistrate gave the following reasons for his conclusion.

4.1 The accused
was charged with the theft of two (2) cattle valued at N$4500.00. At
the end of the trial the accused was “found guilty of theft of
stock valued at N$1500.00…”

4.2 It is not
clear to me how the guilty verdict was arrived at. In my view the
conviction is not supported by the evidence and should be set aside.

4.3 According to
the evidence of Bossman Sikute Wakunyi the complainant, five of his
cattle went missing. He subsequently recovered three (3) cattle.
The accused had allegedly offered one live animal for sale and
slaughtered the other according to the information the complainant
had gathered. The meat from the slaughtered animal has been sold to
various people in the village including Sheki.

4.4 When
convicting the accused I am uncertain as to which “stock”
the magistrate had in mind in terms of the definition in the Stock
Theft Act. There is no proper identification of the stock either
numerically or descriptively before a value is placed on the stock.
Assuming that the value of N$1500.00 placed on the stock by the
magistrate pertains solely to the animal that was allegedly sold in
the village, then obviously the second animal remains unaccounted
for. It cannot be said with such a paucity of evidence that the
state had managed to prove its case beyond a reasonable doubt.

4.5 Neither the
alleged potential buyer of one of the live animals Raphael Kachana
nor the alleged purchaser of some of the meat from the allegedly
slaughtered beast Sheki Nagara were called as witnesses to verify and
corroborate the assertion made by the complainant. It would appear
as if the conviction was based principally on the “confession”
or “admission” allegedly made by the accused as well as
inadmissible hearsay evidence from amongst others the late Kapungi
and the late Chief.

4.6 There is no
proof on the record that the provisions of either section 217
(confession) or section 219 A (admissions) of the Criminal Procedure
Act were complied with before the relevant evidence was admitted. In
particular it was critical to establish whether or not the confession
or admission has been voluntarily made. In my view it was not.

4.7 The evidence
on this score from the complainant himself was that he had left a
word with the accused’s wife instructing her to advise the
accused to come to his school failing which something was going to
happen. It is not in dispute that in compliance with this request
the accused visited the complainant’s school. From the
testimony of the second state witness Christiaan Mbolwa it becomes
apparent that the complainant first reminded the accused about veiled
threat before he started interrogating the accused in the office. It
is clear that the complainant suggested to the accused that he was
responsible for the theft of the two cattle and the sale of the meat
after he had slaughtered them.

4.8 The accused
himself also made certain allegations that he was threatened by the
complainant with a firearm to admit that he had stolen his cattle.
Sight should not be lost of the power relations that existed between
the complainant and the accused. It must be recalled that the
complainant is a school teacher whilst the accused is a mere
unsophisticated rural dweller residing in the same village locality
with the complainant. It is quite possible that when the accused
“confessed” he was under threat from the complainant.

[5] The learned
magistrate who convicted the accused could not give her reasons why
she arrived at the verdict of guilty because she had left for her
country of origin.

[6] The learned
Divisonal magistrate summarized the evidence and what transpired in
court in his reasons. After I have considered the evidence produced
as a whole and the reasons given by the Divisional magistrate I fully
agree with him.

[7] There was no
proper identification of the stock alleged to have been stolen. It
would appear the learned magistrate relied on hearsay evidence
because none of the witnesses who alleged to have bought the live
stock or the meat were called to testify.

[8] The learned
magistrate appeared to have relied further on what the accused told
the complainant that it was he who slaughtered the complainant’s
cattle, however the accused stated that he “confessed”
because he was allegedly threatened with a firearm. What the accused
said is not sufficient to constitute a confession.

[9] A confession
can be defined as “an unequivocal acknowledgment of guilt which
is equivalent to the plea of guilty before a court of law” (see
Rv Becker
1929 AD 167 at 171).

[10] Furthermore
as the learned Divisional magistrate correctly pointed out, there is
no proof that the requirements for a confession in terms of Section
217 or an admission in terms of Section 219A were met, and so what
the accused said could not be said to be a confession neither an

[11] For the
foregoing reason I am in full agreement that the learned magistrate
convicted on the strength of inadmissible hearsay evidence and
“admission” or “confession”. It follows that
the verdict of guilty cannot be allowed to stand.

[12] In the result
the conviction is set aside.