Court name
High Court
Case number
6 of 2012

S v Simeon and Another (6 of 2012) [2012] NAHC 48 (02 March 2012);

Media neutral citation
[2012] NAHC 48
Liebenberg J
Tommasi J




In the matter between:







Delivered on: 02 March 2012

(3) ACT 51 OF 1977


[1] The accused persons were unrepresented when convicted in the
Magistrate’s Court, Eenhana on a charge of stock theft, read
with the provisions of the Stock Theft Act
for having stolen an ox valued at N$4 500 from Hamukonda Kornelius
Tuhafeni in July 2007. The matter was thereafter committed for
sentence to the Regional Court.

[2] After perusal
of the record of proceedings held in the trial court, the Regional
Magistrate was of the view that the conviction of both the accused
persons are not sustained by the evidence and decided to lay
proceedings before a judge for review in terms of s 116 (3) of the
Criminal Procedure Act, 1977.
The reasons advanced by the magistrate for his proposition were
simultaneously forwarded which are twofold i.e. that the alleged
stolen ox has not satisfactorily been identified as being that of the
complainant; secondly, that where the said ox appeared to have been
an abandoned and stray animal for nine years, can the possibility be
excluded that accused no 1 acquired ownership by appropriation?

[3] Having
pleaded not guilty to the charge, the State led the evidence of the
complainant. In summary, his evidence amounts to the following: In
2007 he missed one ox described as
with white spot with a V cut on one ear and a finger cut underneath,
the white is from the face up to the neck”
Under cross-examination complainant changed course when asked for
how many years his ox had been missing and said:
while it was a
with all the marks I mentioned. Nghilifa

that it has been among Mr Gotlieb’s cattle for years and they
cascalated (sic) [castrated] it”
Whereas Nghilifa was not a witness to the proceedings anything
allegedly said by him to the complainant and testified about as being
the truth, would be inadmissible hearsay evidence. The State did not
lead any further evidence and submitted that the accused persons
should be discharged in terms of s 174 of Act 51 of 1977. The
magistrate declined and after both the accused gave evidence, the
court convicted.

[4] In their plea
explanations first accused stated that a stray calf came at his place
and which he later sold at Eenhana; while second accused (being the
community police officer), said he only handed first accused the GRN
brand iron to brand his cattle which were to be sold.

[5] From the scanty information
placed on record through the testimony of the complainant, it is
clear that after the complainant realised in 2007 that an ox of his
was missing, he had not seen it again; hence, he could not have
identified it at any later stage in order to confirm whether it is
the same animal found to be missing. His complaint and
identification seem to rely on information given to him by someone
about an ox which was sold by the first accused, fitting the
description of the animal as to its skin colour and pattern. This
led to the arrest of the two accused persons two years after such
sale. There is no explanation as to why it took two years to
apprehend the accused persons. First accused did not dispute the
description of the animal claimed by the complainant (he was in no
position to do so as he had not seen it with the complainant), but
was adamant that the one that joined his herd, was a bull-calf which
he later ear-marked and castrated; and that it was in his herd for
nine years. The evidence given by accused no 1 was
corroborated in every respect by an independent witness.

[6] Logic dictates that if the
complainant’s ox only went missing in 2007 then it could not
have been the same animal which joined the herd of accused no 1 nine
years earlier as a bull-calf – whether or not it fitted the
description given by the complainant. In no way could they be
speaking of the same animal. In any case, the complainant
contradicted himself under cross-examination by saying that it was a
bull (opposed to an ox) which went missing and that it had been
missing for a period of six years (not two years, the time between it
going missing and when sold by the accused). These are material
differences and in the absence of an explanation satisfactorily
explaining these discrepancies, the complainant’s evidence
cannot safely be relied on. The evidence of the first accused that
the calf came to join his herd being a stray animal, was not
rebutted; hence, his version is reasonably possibly true.

[7] There can be no doubt that the
State failed to prove ownership of the ox sold by the accused and the
trial court misdirected itself on the facts by finding otherwise.

[8] Section 11 (2) of the Stock
Theft Act deals with the situation where the prosecution has failed
to prove ownership over stock being the subject matter of an accused
charged, inter alia, with theft of stock, and states:

person charged with the theft of stock or produce belonging to a
particular person may be found guilty of any of the offences
mentioned in subsection (1), notwithstanding the fact that the
prosecution has failed to prove that such stock or produce actually
did belong to such particular person.”

[9] A reading of
the section makes plain that it only finds application if the accused
person makes him/herself guilty of any of the offences mentioned
therein. In other words, once the State has proved the commission of
any such offence (i.e. theft), but is unable to prove ownership of
the stock in question, only then will the provisions of ss 11 (2)
find application.

[10] I now turn
to consider the present facts and whether the first accused was
guilty of any offence under ss 11 (2) of the Act, which brings me to
the question raised by the Regional Magistrate whether or not
ownership of the stray animal was acquired by appropriation.

[11] This Court
in the case of
with a similar situation where ownership of a stray calf was claimed
by the appellant and at p. 10, para [25] the following was said:

possibility cannot be excluded that the female calf was abandoned,
given the long period that it remained at the farm of the
complainant. Under these circumstances ownership would be acquired
by appropriation. A person who lay claim to have acquired ownership
by way of appropriation should prove that he had obtained physical
control over the property in order to become owner thereof.

Furthermore, in S
v Kariko and Another
16H-17A the following was said regarding

seems that counsel for the appellants accepted the submission by the
State that it is not incumbent upon the State, in order to secure a
conviction, that the State must prove ownership of the stolen
property. A reading of the authorities which we were referred to by
bears that out and the concession was therefore correctly made in my
opinion. See also Hiemstra Suid-Afrikaanse Strafproses 4th ed 249.
The learned author however points out that
the State neglects to prove who the owner of
stolen property is the State cannot simply turn around and argue that
is unknown to it. It would under such circumstances be incumbent on
State to prove that the property was not
(emphasis provided)

[12] Whereas the State in the
present case failed to prove beyond reasonable doubt that the
complainant, claiming ownership of the stray calf that ended up with
first accused or for that matter, anyone else, was shown to be the
lawful owner thereof, it bore the onus to prove that it was not res
, which it failed to do In my view, the possibility
cannot be excluded, taking into account the period of nine years that
it had been with first accused, that the stray calf was abandoned by
its owner after some time. Although it seems highly unlikely that an
owner of a calf would simply abandon his ownership over it for no
good reason, such possibility cannot be excluded and it is for that
reason that the prosecution had to show otherwise. This it failed to
do. It is quite possible that the owner after some years gave up any
hope of retrieving the lost animal and by so doing abandoned it. It
is clear that first accused considered the calf to be without an
owner (res nullius) and assumed ownership over it. In view of
the State failing to prove that it was not a res nullius and
that the accused on the facts could not have come to such conclusion,
it cannot be said that the accused had committed an offence; at least
not that he had the required mens rea to do so. It would
equally apply to the second accused who, in the circumstances, could
neither have been guilty of the offence of theft or any other offence
stipulated in the Stock Theft Act.

[13] In the result, the convictions
of both accused no’s 1 and 2 are hereby set aside.



I concur.



Act No 12 of 1990 (as amended)

Act No 51 of 1977

Unreported Case No CA 63/2010 delivered on 25.11.2011 (as per
Tommasi, J et Liebenberg, J concurring)

Reck v Mills en ‘n Ander, 1990 (1) SA 751 (A)

1998 NR 13 (HC)