Court name
High Court
Case number
68 of 2000
Title

S v Stephanus and Others (68 of 2000) [2012] NAHC 75 (19 March 2012);

Media neutral citation
[2012] NAHC 75
Coram
Mtambanengwe J
Shivute J












REPUBLIC
OF NAMIBIA








IN THE HIGH COURT OF
NAMIBIA



Case No: CA 68/2000



In the matter between:














THE
STATE



APPELLANT




and










ZACHARIA
STEPHANUS


BERLINO
MATROOS


WESLEY
NANUHE


WILLY
JOSOB



FIRST
RESPONDENT


SECOND
RESPONDENT


THIRD
RESPONDENT


FOURTH
RESPONDENT







Coram: Shivute, J
et Mtambanengwe, J



Heard on: 27 May 2002



Delivered on: 19 March
2012



____________________________________________________________________



APPEAL JUDGMENT



____________________________________________________________________







SHIVUTE, J:



  1. This
    is an appeal in terms of section 310 of the Criminal Procedure Act,
    51 of 1977 (the Act) against the discharge of the respondents
    pursuant to the provisions of section 174 of the Act. The
    respondents faced a charge of theft of jewelry from their employer
    valued at N$12 380.00. It is now axiomatic that the
    Prosecutor-General has the right to appeal against any decision
    given in favour of an accused person in a criminal case in a lower
    court. Section 310 of the Act confers such a right to the
    Prosecutor-General and in so far as it is relevant to the facts in
    issue reads as follows:







Appeal from lower court by
Prosecutor-General or other prosecutor.



  1. The
    Prosecutor-General or if a body or a person other than the
    Prosecutor-General or his or her representative, was the prosecutor
    in the proceedings, then such other prosecutor, may appeal against
    any decision given in favour of an accused in a criminal case in a
    lower court, including-




  1. any
    resultant sentence imposed or order made by such court


  2. any
    order made under section 85(2) by such court, to the High Court,
    provided that an application for leave to appeal has been granted by
    a single judge of that court in chambers.”








  1. Leave
    to appeal was granted in chambers on 27 February 2001 and the appeal
    was subsequently heard on 21 May 2002. The appeal is predicated on
    the ground that the trial magistrate misdirected himself,
    alternatively erred in law or in fact by:







1. Not considering every bit of
evidence presented by the state and by not testing it against the
essential elements of the crime of theft which the state has to
prove, in particular the complainant’s evidence of the loss he
suffered, the warnings he issued in this regard to the respondents,
the similarity of the jewelry found in Mr. Fetzer’s shop, the
positive identification of the four respondents as the persons who
sold this jewelry to Mr. Fetzer on different occasions.







2. Not finding at the close of the
case for the prosecution that there was a prima facie case
against respondents and that there was evidence upon which a
reasonable man acting carefully, may convict.







3. Taking into consideration that if
he refuses a discharge the respondents might remain silent when put
on their defence, and by finding that this would lead to them being
found not guilty and therefore discharge should be granted.







4. Not considering that as there was
evidence at the close of the case for the prosecution, the defence
case might supplement the State’s case.







5. Finding that the respondents were
being implicated in order to lift Mr. Fetzer and Mr. Viljoen out of a
mess, thus, finding that the evidence of two prosecution witnesses
were of such poor quality and unreliable that no part thereof can
possibly be believed;







6. Not finding that as there was
evidence at the close of the case for the prosecution, he has no
right and no power to discharge the respondents.”







  1. The
    facts of the case may be summarized as follows:




Mr. Rudolf Abraham
Johannes Viljoen owned a jewelry-manufacturing factory in Windhoek
where the four respondents worked for more than a year prior to their
arrest on the charge in question. On 27 September 1999, a tourist
visited Mr. Viljoen’s factory shop and informed him that he,
the tourist, could obtain pieces of jewelry similar to the ones Mr.
Viljoen was selling at a cheaper price elsewhere. Mr. Viljoen
expressed surprise because he was sure that his materials were
uniquely made in his factory shop. For that reason he was curious to
know who else was selling jewelry similar to his. The tourist
directed him to a jewelry trading business owned by a Mr. Fetzer
where Mr. Viljoen discovered, to his astonishment, that there were
materials in Mr. Fetzer’s shop that were made in Mr. Viljoen’s
factory. The evidence tendered in the trial court was that no
jewelry transaction was ever concluded between the two jewelry
traders. Mr. Viljoen immediately suspected his employees as the
possible sources of his jewelry found in Mr. Fetzer’s shop.
Without much ado, Mr. Viljoen invited Mr. Fetzer to his factory so
that the latter could “identify the persons who [had] sold the
materials to him”. The four respondents, together with another
co-worker, were found on their desks making jewelry and Mr. Fetzer
wasted no time in pointing at the respondents as the persons who had
allegedly sold Mr. Viljoen’s jewelry to him. Mr. Viljoen
explained in evidence how he was able to identify his jewelry pieces
and how these could have passed the factory undetected. When
cross-examined on whether he had prior knowledge of the theft, he
replied:







Ja, all the time you know every
now and then there is something small missing I can’t play
policeman and look over every one’s shoulders the whole day”.







  1. He
    explained that the nature of the casting process was that some
    pieces did not come out as processed materials and speculated that
    the respondents could have taken advantage of the mishaps during the
    casting process to steal the missing pieces from the ”tree”
    where these unprocessed materials would normally attach after the
    casting process had been completed. Evidence presented before the
    trial court was that several warnings were issued to the respondents
    for the missing pieces in the past.








  1. Mr.
    Fetzer testified that he was the owner of the souvenirs shop in
    Windhoek and had been in the business for six years at the time. He
    told the court that processed pieces which were sold to him included
    a pendant made from makalani nuts covered in silver from the back to
    front and a silver guinea fowl. Mr. Fetzer was insistent that he
    was convinced that the materials were not stolen after he was told
    by the respondents that they had made the materials themselves. Mr.
    Viljoen’s evidence was, however, that the pieces of jewelry he
    found in Mr. Fetzer’s shop was machine-manufactured and not
    hand-made. He was of the view that a person of Mr. Fetzer’s
    experience could have easily detected this and determined that they
    were possibly stolen. The evidence of Mr. Fetzer further reveals
    that normal procedures were not followed when he had allegedly dealt
    with the respondents. Although he insisted that he had meticulously
    kept record of all the persons he had dealt with in the past, no
    documentation recording the transactions allegedly conducted with
    the respondents was available to the court at all. Mr. Fetzer
    explained that the documents relating to the transactions were kept
    in a box somewhere in his shop but these could not be traced. In
    the absence thereof, except for Mr Fetzer’s say so, it is
    impossible to even prove firstly, that there was a sale, secondly,
    of the pieces before court and thirdly that it was indeed the
    respondents who sold these pieces. Under cross-examination
    ,
    Mr. Fetzer stated that he had several dealings with the
    respondents which made it easier for him to identify them although
    he could not remember their names or how much the pieces were sold
    for.








  1. Mr.
    Fetzer appeared to have contradicted himself when he testified that
    when he was approached by the respondents, they never told him where
    they came from while in the statement to the police he stated that
    the respondents had told him that they were from Karibib. This
    evidence appears to have been shaken further when he testified that
    it was possible that he had heard the respondent’s place of
    origin from his sales persons and decided to include it in his
    statement.
    1
    The rest of Mr. Fetzer’s evidence seems to be clouded in
    contradictions and inconsistencies. Mr. Fetzer’s responses
    appeared to be hostile and he evaded answering certain questions put
    to him by counsel. Mr. Fetzer was clearly an accomplice whose
    evidence ought to be treated with caution.








  1. At
    the close of the State case, counsel for the respondents applied for
    their discharge. It was argued that the State had not proved a prima
    facie
    case against the respondents on the basis of which a
    reasonable court may convict. This argument was based on the
    evidence of identification of the respondents by Mr. Fetzer. Counsel
    for the respondents in the trial court submitted that it was fairly
    easy for Mr. Fetzer to identify the four respondents in the
    circumstances where there were only five persons on the factory
    floor. In counsel’s own words:












Mr. Fetzer walks through the
factory, the accused person before Court are working, as Mr. Viljoen
indicated, sitting down perhaps working, I mean he wouldn’t be
able to have a proper look at their faces, because they were sitting.
And I mean, nowhere did Mr. Fetzer indicate that he went down to look
at their faces perhaps to identify these accused persons before court
as the perpetrators who indeed sold these items to him.”
2







  1. I
    am in agreement with the submission by counsel in effect that the
    evidence of identification was tenuous to say the least. In the
    case of
    S
    v Ndikwetepo and Others,
    3
    this
    Court

    following
    a long line of authorities, pointed out that the right procedure for
    identification would be through a properly held identification
    parade where the complainant would point out the suspect by putting
    his/her hand on the suspect’s shoulder. It is generally
    accepted that an identification of an accused person as the criminal
    is a matter notoriously fraught with error and our courts treat such
    evidence with caution. Muller, AJ (as he then was) in the
    Ndikwetepo
    matter pointed out at 250E-I that factors such as the witness’
    previous acquaintance with an accused, accused’s clothing,
    specific features, opportunity for observation, time lapse between
    the incident and the trial should be properly investigated to reject
    any reasonable doubt as to the identity of the accused person. The
    court further pointed out that:







An identification parade is not
only an effective investigative procedure, but also serves an
important evidential purpose in that it can provide the prosecution
with evidence which is of far more persuasive value than an
identification in court, i.e. the so-called ‘dock
identification’.”
4






  1. The
    approach adopted in the so-called identification of the respondents
    does not conduce to a fair procedure in the investigation of crime.
    Mr. Viljoen had a duty to inform the police of his findings and
    suspicion so that a proper investigation, which would have included
    a proper identification parade, could be done. Instead, something
    akin to “dock identification” was done coupled with an
    easy task to identify four out of five people as suspects. Applying
    the principles laid down in the Ndikwetepo-case above, Mr.
    Fetzer could not identify any feature on any of the respondents
    which made it possible for him to identify them. Furthermore,
    considering the evidence before court that these transactions
    normally take a few minutes and Mr. Fetzer had many customers, it
    would have been a daunting task that after close to 2 years, he
    would still be in a position to adequately and with precision
    identify the respondents and to further link them to these specific
    pieces of jewelry. It is therefore my considered opinion that the
    evidence by Mr. Fetzer was of such poor quality that no reasonable
    court might convict on it. Nowhere in the evidence of Mr. Fetzer can
    it be indicated that the elements of the charge have been proved or
    that the respondents, if their identity can be confirmed with
    certainty, indeed committed the crime. On the other hand, the
    evidence of Mr. Viljoen is based on mere suspicion and the proof
    with regard to the identity of the respondents is dependent on the
    evidence of Mr. Fetzer which is of such a poor quality that I think
    that the trial court was justified in rejecting it. If the evidence
    of Mr. Fetzer is to be rejected, there would be nothing left of the
    State case as regards the crucial issue of identification of the
    respondents.








  1. Section
    174 of the Act reads
    :







If at the close of the case for
the prosecution at any trial, the court is of the opinion that there
is no evidence that the accused committed the offence referred to in
the charge or any offence of which he may be convicted on the charge,
it may return a verdict of not guilty.”







  1. It
    was stated in the South African case of
    S
    v Shuping
    5
    at 120B-C that ”no evidence” means “insufficient
    evidence” on which a reasonable person may convict. The
    generally accepted view, both in Namibia and in South Africa, is
    that although credibility of a witness is a factor that can be
    considered at the close of the State’s case, it plays a very
    limited role. If there is evidence supporting a charge, an
    application for discharge can only be sustained if that evidence is
    of such poor quality that it cannot, in the opinion of the trial
    court, be accepted by any reasonable court.
    6
    The approach adopted by an appeal court under section 174 in an
    appeal by the State against an acquittal is the same as in appeals
    by a convicted person against his conviction.
    7
    The elements of the crime of theft includes an act of
    appropriation; in respect of a certain kind of property; which is
    committed unlawfully and with an intention to permanently deprive
    the lawful owner thereof.
    8
    The State needs to prove these elements beyond a reasonable doubt to
    sustain a conviction. The magistrate in the court
    a
    quo

    ruled that the inconsistencies in the evidence led by the State as a
    whole created doubt and that there was no
    prima
    facie

    case to put the respondents on their defence. The trial court
    concluded
    inter
    alia

    as follows:







There is a whole cloud of
suspicion, whole cloud of people being pinned down in order to lift
another out of a mess. Now, if this Court has that problem, doubts in
my mind and therefore begged and put the accused on their defence and
the accused decide to remain silent, which evidence therefore is
going to corroborate or iron out the doubts that I have in my mind?
The prima facie case on its own should be able to invite a
conviction. And if it is unable to invite such a conviction we are
relying on speculation that the defence may bring up this version in
order to support the State’s case. We are still cheating
ourselves because the defence has got a variety of rights how to go
about processing their case before court. Having doubts and the
things I have mentioned, this court believes that still the State has
not put up a prima facie case against the accused. The only
evidence before this Court seems to be that of witch-hunting and I am
not satisfied that there is indeed a prima facie case
established…”







  1. A
    vast number of authorities indicate that an s. 174 discharge is a
    matter sorely in the discretion of the presiding officer, which
    discretion is to be exercised judicially. The magistrate in the
    court a quo as evident from the above quotation discharged
    the respondents inter alia on the basis that the respondents
    had a variety of rights on how to go about presenting their case,
    e.g. they may exercise their right to remain silent when put on
    their defence and that it would therefore be mere speculation to
    expect the defence to bring up evidence supportive of the State’s
    case. The appellant, however, argued that the magistrate erred by
    not considering that the defence case might supplement the State’s
    case. The argument by the appellant is based on the decision in the
    Shuping case at 121A where the position was set out as
    follows:







“(a) is
there evidence on which a reasonable man might convict? If not;







  1. is
    there a reasonable possibility that the defence evidence might
    supplement the State’s case? If the answer is yes, there
    should be no discharge and the accused should be placed on his
    defence.”








  1. The
    Shuping’s
    case
    has been under scrutiny over the years by the courts in order to
    determine the correct approach to follow with regard to s. 174
    discharge applications. The initial approach set out in the case of
    S
    v Campbell and Others
    9
    and
    S v Rittmann
    10
    was
    to consider whether there is no evidence upon which a reasonable
    court, acting carefully, may convict. Lack of evidence would then
    lead the court to apply the second leg which appears to have brought
    about controversies within our legal system. The above mentioned
    cases considered a reasonable possibility of supplementation by the
    accused of State’s case as sufficient enough to refuse to
    discharge an accused at the end of the State’s case.







  1. However,
    it w
    as
    pointed out in the South African case of
    S
    v Phuravhatha and Others
    11
    that where no State case had been made out, it cannot be
    supplemented or strengthened by the defence case. The possibility
    that the defence case ma
    y
    supplement the State’
    s
    case
    is a factor

    that
    needs to be considered, but other factors, such as the interests of
    the accused which may override it, need also consideration. Each
    case should be decided on its own facts and circumstances taking
    into account the number of accused persons and the type of crime
    alleged to have been committed. In support, Mtambanengwe, J

    in
    S
    v Paulus and 12 Others,

    unreported judgment of this Court, delivered on 3 November 2000,
    stated at para [4] that
    Shuping
    is an example of the futility of attempting to formulate a test
    meant to apply to all situations and further pointed out that each
    case should be decided upon its own facts and circumstances. The
    Court in that case further agreed with the view expressed in the
    Phuravhatha
    matter that the reasonable possibility of general supplementation of
    an inadequate or poor state case is a factor, amongst others, which
    may be considered. The conclusion drawn is that the second leg of
    Shuping
    is not good law and the State, which bears the onus to prove an
    accused’s guilt, cannot expect any assistance from an accused
    to discharge its onus. If the State has therefore failed to
    establish
    a
    prima facie

    case against the respondents, they are entitled to a discharge.
    Another issue that had to be considered by the courts was whether
    the accused’s fundamental rights which are entrenched in the
    constitution, e.g. the right of an accused to be presumed innocent
    and his right to remain silent, as well as his right not to be
    compelled to testify would override the test laid down in
    Shuping,
    especially the second leg propounded therein. This issue has been
    decided in the South African case of
    S
    v Mathembula and Another
    12
    to
    the effect

    that
    the fundamental rights enshrined in that country’s
    constitution have been given a higher force, curtailing the court’s
    discretion in terms of s. 174. This is because (a) the duty to prove
    the guilt of the accused rests with the State and the accused need
    in no way assist the State in this task and (b) it cannot be said
    that the accused was given a fair trial if at the end of the State
    case there is no evidence to implicate him in the alleged crimes,
    but nevertheless the trial is continued due to the exercise of a
    discretion in the hope that some evidence implicating him may be
    forthcoming from the accused or co-accused.








  1. The
    current position of our courts appears therefore to be that the
    constitutional rights should not be offended when an application
    brought in terms of s. 174 is considered. The constitution is the
    supreme law of the country and Article 12 requires that an accused
    be given a fair trial and fairness is an issue which is decided upon
    the facts of each case. The correct view at this point would
    therefore be as stated in the case of
    S
    v Lubaxa
    13
    where the court held that the poor quality of the evidence would be
    tantamount to expecting the accused to go into the witness box and
    make out a case against him or herself. This would be a serious
    injustice and a violation of the accused’s fundamental right
    to a fair trial. There must therefore be a reasonable and probable
    cause to believe that the accused is guilty even before the
    prosecution is initiated and a conviction should not be brought
    about when an accused enters the witness box and incriminates
    himself or herself or his/her co-accused.








  1. The
    trial court may have been forthright in its views about the strength
    of the State case at the stage when it was called upon to decide
    whether or not the respondents should be put on their defence. It
    seems to me though that it was right in its ultimate conclusion that
    the State had not established a prima facie case against the
    respondents and that they were entitled in the circumstances to be
    discharged. It follows that the appeal ought to be dismissed.








  1. In
    the result the following order is made:







The appeal is dismissed.























________________________



SHIVUTE, J















I agree.



















________________________



MTAMBANEGWE, J






































COUNSEL
ON BEHALF OF THE APPELLANT:





Instructed
by:








COUNSEL
ON BEHALF OF THE 1
st
RESPONDENT:





Instructed
by:








COUNSEL
ON BEHALF OF 2
nd
RESPONDENT:





Instructed
by:








3rd
AND 4
th
RESPONDENTS:



Ms.
A.T. Verhoef





Prosecutor-General








Mr.
J.R. Walters





Legal
Aid








Mr.
J.S. Steyn





Van
der Merwe-Greeff Inc.








In
person








1
Record page 46-47.




2
Record page 61.




3
1992 NR 232 at 234H.




4
Quoting from Du Toit et Commentary on the Criminal Procedure Act
3/6 -3/12




5
1983 (2) SA 119 (P) at 121A




6
S v Mphetha and Others 1983 (4) SA 262 (C) at 265




7
S v Shikunga and Another 1997 NR 156 at 180F-G




8
CR Snyman Criminal Law (3rd Ed) p. 445




9
1990 NR 310 (HC)




10
1994 NR 384 (HC)




11
1992(2) SACR 544 (V) at 550H-551A-C.




12
1997 (1) SACR 10 (W) at 34J-35A-H.




13
2001 (4) SA 1251, at Para [18] and [19].