Court name
High Court
Case number
20 of 2012
Title

S v Meroro and Another (20 of 2012) [2012] NAHC 79 (15 March 2012);

Media neutral citation
[2012] NAHC 79
Coram
Hoff J
Ndauendapo J


















CASE NO.: CR 20/2012



REPORTABLE








IN THE HIGH COURT OF NAMIBIA








MAIN DIVISION








HELD AT WINDHOEK








In the matter between:








THE STATE








and








MATHEUS DAWID MERORO
…...........................................................................ACCUSED
NO. 1








MATHEUS NAIKETE
…........................................................................................
ACCUSED
NO. 2


















HIGH
COURT REVIEW CASE NO.: 1806/2011


















CORAM: HOFF, J et
NDAUENDAPO, J













Delivered on: 15 March 2012













SPECIAL
REVIEW JUDGMENT

















HOFF,
J
: [1] This matter has been sent on review in terms of
provisions of section 116(3) of Act 51 of 1977 by the divisional
magistrate for the Keetmanshoop division, Mr S. Zisengwe.



[2] The two accused persons were
charged with theft of stock (51 goats) in contravention of the
provisions of section 11(1)(a) of the Stock Theft Act, Act 12 of
1990. Both accused persons pleaded not guilty in a periodical court
in the district of Mariental.



After the State had led the
evidence of witnesses against them and after both accused persons had
testified both of them were convicted of theft of stock (37 goats,
each valued at N$750.00). The accused persons were legally
represented by Mr S Maritz of the legal firm Dr Weder, Kauta &
Hoveka Inc., Windhoek. The trial magistrate transferred the matter to
the Regional Court for purpose of sentencing in terms of section
116(1)of the Criminal Procedure Act, 51 of 1977.



The regional court magistrate,
Mr Zisengwe, stated in his cover letter that after he had perused the
evidence led, he was not satisfied that the State had proved its case
against accused no. 2 beyond reasonable doubt.








[3] In a nutshell the evidence
led by the State was that accused no. 1 sold 40 goats to a Mr Sitwana
Mapenzi. It was subsequently discovered that these goats belonged to
the complainant, Mr George Mbundu, and that the goats had been
removed from his farm, Anana Sud. Accused no. 1 did not deny that he
sold 40 goats to Mr Mapenzi. Accused no. 2 was at the time of the
sale of the goats employed by accused no. 1 as a foreman on his farm
whose primary duty was to look after goats. It is common cause that
the entire negotiations and transaction regarding the sale of the
goats were between accused no. 1 and Mr Mapenzi.



It is also common cause that the
goats were collected by the employees of Mr Mapenzi from the farm of
accused no. 1. Mr Mapenzi was not present at that stage. According to
one of the state witnesses Mr Bonkratis Kamena, (one of the employees
of Mr Mapenzi), accused no. 1 took them to a kraal and showed them
the goats he wanted to sell. Accused no. 2 was present.



Another state witness, Joseph
Mukoya, one of the persons who collected the goats from accused no.
1, testified that accused no. 1 told accused no. 2 to point out the
goats that would be sold to Mr Mapenzi. He testified that they then
collected the “pointed goats” and drove them to Mr
Mapenzi’s farm. These goats had yellow eartags and there were
markings “NGB” on the goats. These tags were removed on
instructions from Mr Mapenzi and replaced with grey eartags. The
complainant testified that on the eartags of his goats was his mark
“GB/N”.



It is not clear from the
evidence of Joseph Mukoya whether accused no. 2 indeed pointed out
goats as instructed by accused no. 1. This issue was never explored
by the prosecutor neither by the presiding magistrate to establish
whether at the stage when the accused no. 2 had been so instructed he
had indeed pointed out goats and that at that stage accused no. 2 had
known those goats had in fact been stolen. According to Joseph Mukoya
the goats remained on Mr Mapenzi’s farm but after about a week
returned to the farm of accused no. 1. They decided to collect the
goats from the farm of accused no. 1. When they arrived on his farm
accused no. 1 gave them 40 goats without eartags. Bonkratis Kamena
supports the evidence of Joseph Mukoya that it was accused no. 1 who
had initially pointed out the goats to be delivered to Mr Mapenzi.
The version of accused no. 1 was that the employees of Mr Mapenzi
entered the kraal and selected 40 goats. He never testified that he
instructed accused no. 2 to “pinpoint” 40 goats. Accused
no. 2 testified that when Mr Mapenzi’s workers arrived on the
farm of accused no. 1 he was informed by accused no. 1 that he was
selling 40 goats to Mr Mapenzi and that 40 goats were then selected
without identifying who had selected the 40 goats. His testimony was
that some of the goats selected had silver eartags. He testified
further that 37 of the goats sold returned to their kraal two weeks
later. It is common cause that when the 40 goats arrived on the farm
at Mr Mapenzi he instructed his workers to slaughter three of the
goats hence only 37 goats returned to the farm of accused no. 1.
Accused no. 2 during cross-examination was never confronted with the
evidence of Joseph Mukoya that accused no. 1 instructed him (i.e.
accused no. 2) to “pinpoint” the goats to be sold to Mr
Mapenzi.



The testimony of accused no. 1
in respect of the goats with the yellow eartags was that those goats
belonged to a relative of his and that he had informed the person
selecting the goats, that the goats with the yellow tags should not
be touched. Accused no. 2 supported the evidence of accused no. 1 on
this point. There is thus a dispute whether the 40 goats delivered to
Mr Mapenzi had yellow eartags when they were so delivered.








[4] The trial magistrate dealt
in her judgment (consisting of twenty paragraphs) with the
involvement of accused no. 2 only in paragraphs 19 and 20, and as
follows:








19



Accused 2 being the caretaker of accused no1, it
would be expected that he knows which goats belonged to accused no. 1
and which goats would be strange. However this accused although 37
goats bearing yellow ear tags marked NGB were in accused 1’s
kraal as per the evidence, proceeded to partake in the sale of such
goats. Interesting to note is that the accused under oath proceeded
to lie testifying that the second batch of 37 goats were the exact
same goats from the first batch, whilst the evidence proves
otherwise. The only inference that the court can draw is that this
accused acted in common purpose with accused one.








20



With the evidence adduced the court found the state
witnesses to be credible, their testimonies were consistent to the
material issues. The evidence adduced also proves that the accused 1
and 2 had the intention to permanently deprive the complainant of his
goats, hence the sale thereof ...”








[5] The evidence of accused no.
2 regarding the return of the goats was that after the initial 40
goats had been driven from the kraal by the employees of Mr Mapenzi
37 goats returned after approximately 2 weeks. These goats had Mr
Mapenzi’s eartags on. He informed accused no. 1 of the return
of the goats who in turn informed him to keep the goats in the kraal.
The next day Kamana a worker of Mr Mapenzi came and he (i.e accused
no. 2) gave him 37 goats in total. Accused no. 2 continued to testify
that on “a certain night after the sale of the goats accused
again came with Mapenzi and the following morning Mapenzi sent his
son to come and collect accused no. 1 to his farm. Accused no. 1 went
to Mapenzi.



I then saw three vehicles, 1 of
accused, Mapenzi and the police and they said to take them to the
kraal. Among the goats sold to Mapenzi, 27 goats again
returned, amongst these goats, 3 goats came, from the 3 goats, 2
goats had Mapenzi eartags and 1 had yellow eartag. The 24 goats had
grey eartags”.








[6] During cross-examination
only two questions were posed to accused no. 2.



The first one as follows:



Q. From the 27 goats, that returned, only 24
goats are the goats that accused no. 1 sold to Mapenzi ?



A. Correct, the 3 other goats that also came with, 2 had
Mapenzi eartags and it was these 2 goats that were identified by the
complainant as his.”








[7] It was never the testimony
of accused no. 2 that the second batch of 37 goats were the exact
same goats as the first batch. Accused no. 2 testified that when
Kamana, the worker of Mr Mapenzi came he gave him 37 goats in total.
It was never clarified whether the 37 goats he so gave to Kamana were
of the same batch of goats initially delivered to Mr Mapenzi.








[8] The evidence of accused no.
2 was not very clear regarding the issue of the returning goats. He
testified after the initial sale, 37 goats returned with Mapenzi’s
earmarks on. Thereafter 37 goats were delivered to Kamana. He then
testified that among the goats sold to Mapenzi, 27 goats again
returned of which 24 goats had grey eartags on. What is not clear to
me is whether the 27 goats which returned again were part of
the 37 goats delivered to Kamana during the second occasion.



Nevertheless there is no
evidence at all (not from the state witnesses and not from any one of
the accused persons), that accused no. 2 partook in the sale of goats
to Mr Mapenzi. This finding by the trial magistrate is not supported
by the evidence on record. It is common cause that only accused no. 1
received payment from Mr Mapenzi in respect of the goats sold to Mr
Mapenzi








[9] I agree with the trial
magistrate one would have expected that accused no. 2, being the
goatherd of accused no. 1, would have known which goats belonged to
accused no. 1 and which did not. However to rely on such an
expectation and then to convict the accused, having regard to the
paucity of the evidence adduced, falls far short of the legal
standard of proof in criminal matters. The State has the onus in
criminal proceedings to prove all the allegations in the charge
sheet, including the element of mens rea and that accused no.
2 had knowledge of the unlawfulness of the sale of the goats to Mr
Mapenzi and that he knowing participated in such unlawful conduct,
beyond reasonable doubt.








[10] The cross-examination by
the prosecutor (of accused no. 2) in respect of these two aspects is
non-existent. Not one question was asked in respect of his knowledge
regarding the ownership of those goats initially sold to Mr Mapenzi.
I have indicated that only two questions were put to accused no. 2
during cross-examination. One question related to the number of goats
which had returned to the farm of accused no. 1 and the second
question was about the fact that according to accused no. 1, the
complainant identified two goats without eartags as his goats.



Similarly, accused no. 1 was
never cross-examined by the prosecutor whether accused no. 2 had any
knowledge of the ownership of the 40 goats delivered to Mr Mapenzi.
The issue of whether accused no. 2 had knowledge of the ownership of
the 40 goats was also never explored by the presiding trial
magistrate. It was never put to accused no. 2 by the prosecutor that
the 40 goats sold to Mr Mapenzi had yellow eartags with markings
“NGB”. This one would have expected the prosecutor to do
since accused no. 1, who testified before accused no. 2, placed
ownership of the goats in dispute. The cross-examination of accused
no. 2 by the prosecutor, was in my view, shockingly brief.








[11] I am aware that it is
undesirable and is regarded as an irregularity for a magistrate “to
descend into the arena” and to fulfill the function of the
prosecutor in respect of the cross-examination of an accused person.
This however does not mean that a magistrate must, as was done in
this case, be content with the totally inadequate cross-examination
of the prosecutor.








[12] The function of a judge was
described by Curlewis JA in R v Hepworth 1928 AD 265 at 277 as
follows:








A criminal trial is not a game where one side is
entitled to claim the benefit of an omission or mistake made by the
other side, and a judge’s position in a criminal trial is not
merely that of an umpire to see that the rules of the game are
observed by both sides. A judge is an administrator of justice, he is
not merely a figure head, he has not only to direct and control the
proceedings according to recognised rules of procedure but to see
that justice is done.”








[13] Section 167 of the Criminal
Procedure Act, 51 of 1977 provides as follows:








The court may at any stage of criminal
proceedings examine any person, other than an accused, who has been
subpoenaed to attend such proceedings or who is in attendance at such
proceedings,
and may recall and re-examine any
person including an accused, already examined at the proceedings
,
and the court shall examine, or recall and re-examine, the person
concerned if his evidence appears to the court essential to the just
decision of the case.”



(Emphasis provided).



[14] In terms of the provisions
of section 186 of Act 51 of 1977 a Court may at any stage of criminal
proceedings subpoena witnesses.








[15] It should be apparent from
the provisions of section 167 that an accused person may be recalled
and/or may be re-examined by the Court. It is further apparent that
the Court has a duty to so recall or re-examine an accused in
those instances where it appears to the court essential to the just
decision of the case.








[16] In S v Van den Berg
1996 (1) SACR 19 (Nm) O’Linn J at 64 considered the role of
Namibian courts in relation to ss 167 and 186 and remarked as follows
at 64 e – f:








The role of the court in Namibia has often been
described as that of ‘administrator of justice’. The role
of administrator of justice entails that the court will attempt to
ensure, with all the means at its disposal, including the powers and
duties under ss 167 and 186, that substantial justice is done.
Substantial justice, in turn, is ensured when an innocent person is
not punished and a guilty person does not escaped punishment. The
role of administrator of justice furthermore envisages a balancing of
the interests of the prosecution with that of the defence.”








And continues at 64 g – h
as follows:








The role of the Court as set out herein is
particularly relevant in a developing country such as Namibia, where
at this point in time many policemen, prosecutors and, to some extent
even magistrates are not adequately qualified or trained and/or are
inexperienced, often leading to the subversion of the law and the
legal system and in many cases to a travesty of justice, of which the
present case is an illustration. This in turn is one of the causes of
the progressive loss of confidence of law-abiding citizens in the
legal system.”








[17] These remarks to some
extent still hold true more than a fifteen years later.








[18] Regarding the issue or
perception of the court descending into the arena, O’Linn J
stated the following in Van den Berg (supra) at 67 a –
b:








Of course, the Court should never descend into
the arena so to speak. But when the Court is placed in the position
where it has to inform itself it must of necessity exercise its
powers and fulfill its duties in terms of aforesaid provisions of the
Criminal Procedure Act and to do so cannot be regarded as “descending
into the arena”.
Alternatively,
even if it can be described as “descending into the arena”,
such “descending into the arena” is prescribed by statute
and is mandatory in some cases and desirable in others. The basic
role as administrator of justice again needs emphasis because it
seems that many legal practitioners and even some judicial officers
are either not aware of these provisions and precedents or fail for
some unknown reason to give effect to it.”



(See also S v von Mollendorf
and Another
1987 (1) SA 135 TPD).








[19] The quotation at 64 g –
h in Van den Berg (supra) was quoted with approval in S v
Ngcobo
1999 (3) BCLR 298 (N) by the Full Bench of the Natal
Provincial Division in South-Africa.








[20] In S v Mseleku and
Others
2006 (2) SACR 237 NPD a Full Bench decision the Court held
at paragraphs 10, 11 and 12 that if the Court examines any person in
terms of s. 167 the prosecutor and the accused may put questions
arising from such further questioning by the Court; that various
principles have arisen which are to the effect that the Court may
intervene at any time to elucidate a point, but should not take over
the cross-examination or put leading questions to support the State
case before the parties have finished their examination of the
witness; that the court however may do so at the end of the
examination by the parties; and that the purpose of the Court’s
examination should be to elucidate any points that may still be
obscure after examination by the parties. In my experience this is in
line with the practice in Namibia. It was emphasized in Mseleku
that the impartiality of a Court in criminal proceedings should be
evident from the nature and scope of its questions.








[21] The presiding trial
magistrate in paragraph 19 stated that the inference drawn by the
court was that accused no. 2 “acted in common purpose with
accused one”, without stating the factual basis for such an
inference. In my view it would be a misdirection to regard the
employer – employee relationship per se as the basis of
such an inference.








[22] The evidence adduced, in my
view, also does not support the finding by the magistrate, in
paragraph 20,that accused no. 2 intended to deprive the complainant
of his goats, permanently.



Magistrates should have the
confidence and courage to comply with their functions as prescribed
in ss. 167 and 186 of Act 51 of 1977, and to comply with their duty
as administrators of justice, despite the fact that the legal
representative of an accused is present in the courtroom. The trial
magistrate in my view, would have been perfectly entitled and
justified to question accused no. 2, directly, regarding his
knowledge of the ownership of the 40 goats delivered to Mr Mapenzi.








[23] I agree, for the aforesaid
reasons, with the regional court magistrate, that the evidence
adduced by the State did not prove the commission of the crime of
theft of stock by accused no. 2 beyond reasonable doubt and that
accused no. 2 was wrongly convicted. The conviction in respect of
accused no. 2 accordingly stands to be set aside.








[24] The legal position in
Namibia regarding review proceedings before sentence is that as a
general rule those proceedings are not reviewable and a Court on
review will only exercise its inherent common law powers of review in
rare instances of material irregularities where grave injustice might
otherwise result, or where justice might not be attained by other
means.



(See S v Immanuel 2007
(1) NR 327 (HC); S v Cornelius Swartbooi CR 09/2012 unreported
judgment of this Court delivered on 15 February 2012).








[25] However proceedings
transmitted by a magistrate in terms of the provisions of section
116(3) of Act 51 of 1977 is not subject to this limitation and may be
transmitted after conviction but before sentence.



(See S v Mogoregi 1978
(3) SA 12 OPD at 14B).








[26] In the result the following
orders are made:









  1. The conviction in respect of
    accused no. 2 is set aside.










  1. The matter is remitted to the
    Regional Court for the purpose of sentencing accused no. 1.


































_______



HOFF, J























I agree




























________________



NDAUENDAPO, J