The State vs Eradius Kauleefelwa - Superior Courts of Namibia

THE STATE v ERADIUS KAULEEFELWACASE NO. CR 61/20052005/06/16Damaseb, J.P. et Maritz, J.CRIMINAL PROCEDURESTOCK THEFT ACTCriminal procedure – s 114 – committal ofaccused by district magistrate’s court toregional court for sentence – section conferslimited powers of review to regionalmagistrate – powers of regional magistrateunder section discussedStock theft – Stock Theft Act not creatingsubstantive crime of stock theft – theft ofstock still common law crime of theft withdistinguishing feature that stock or produceconstitutes subject matter of theft – valuethereof not element of crime – failure ofaccused to unequivocally admit value durings 112(1)(b) enquiry not justifying conviction tobe set aside under s 114(3)(a) of CPACriminal procedure – minimum sentencesprescribed by s 14 of Stock Theft Act –unrepresented accused to be informed andimplications thereof to be explained –opportunity to be afforded to accused toadduce evidence of substantial andcompelling circumstances justifying lessersentence

2CASE NO. CR 61 /2005IN THE HIGH COURT OF NAMIBIAIn the matter between:THE STATEversusERADIUS KAULEEFELWA(SPECIAL REVIEW: HIGH COURT CASE NO. 811/2005)CORAM: DAMASEB, J.P. et MARITZ, J.Delivered on: 2005-06-16_____________________________________________________________________SPECIAL REVIEW JUDGMENTMARITZ, J.: The accused was arraigned before the magistrate,Eenhana, on a charge of theft taking into consideration the provisionsof sections 11(1)(a), 1, 14 and 17 of the Stock Theft Act, 1990 asamended (the “Act”). He pleaded guilty to the charge and, after themagistrate had satisfied herself during an inquiry in terms of s.

3112(1)(b) of the Criminal Procedure Act, 1977 (the “Code”), that theaccused had intended to plead guilty, she convicted him as charged.She thereupon stopped the proceedings in the district magistrate’scourt and committed the accused in terms of s. 114 of the Code forsentence in the regional magistrate’s court for that area.Although the record of proceedings in the district magistrate's courtwas proved and received by the regional court as part of the record ofthat court, the regional magistrate declined to make a formal finding ofguilty and to sentence the accused. Instead, he forwarded the recordto this Court on “special review”. The reasons for that decision appearfrom both the record of proceedings forwarded on special review andthe accompanying letter. It will suffice if I quote the letter verbatim:“1. Accused was convicted of stock theft after he pleaded guilty tothe charge. The case was transferred to the regional court forsentence to be imposed in terms of section 3 of the Stock TheftAmendment Act, 2004 (No. 19 of 2004).2. After I read through the record of the district court, I was notfully satisfied that the value of the cattle as alleged in thecharge has been established in view of the fact that no evidencewas led in that regard. Though accused said that he did notdispute the value, that mere saying, in my view, is not anunequivocal admission of the value of the cattle.3. The value of the stock is very essential for the purpose ofsentence. It is therefore my view that if the State alleges acertain value of the stock, evidence must be led to prove thevalue.

44. It is for the above reason that I have decided to send thismatter for special review. ....”Prudent as it might have been, the course of conduct followed by theregional magistrate appears to be both inappropriate andimpermissible. Section 114(3) of the Code indirectly confers a limitedform of review upon regional courts in cases where accused personsare committed to that court for sentence. (See: Du Toit et al.,Commentary on the Criminal Procedure Act, p. 17-17) It provides asfollows:“(a) Unless the regional court concerned –(i) is satisfied that a plea of guilty or an admission by theaccused which is material to his guilt was incorrectlyrecorded; or(ii) is not satisfied that the accused is guilty of the offence ofwhich he has been convicted and in respect of which hehas been committed for sentence,the court shall make a formal finding of guilty and sentence theaccused.(b)If the Court is satisfied that a plea of guilty or an admission bythe accused which is material to his guilt was incorrectlyrecorded, or if the Court is not satisfied that the accused isguilty of the offence of which he has been convicted and inrespect of which he has been committed for sentence or that hehas no valid defence to the charge, the Court shall enter a pleaof not guilty and proceed with the trial as a summary trial inthat court: provided that any admission by the Accused therecording of which is not disputed by the accused, shall standas proof of the fact thus admitted.”

5The Magistrate is correct in his assessment that the accused’sresponse to the district magistrate’s question regarding the value ofthe stolen cattle does not constitute an unequivocal admission. Hisanswer falls significantly short of an admission that the assessedvalue of N$7 000 was correct. But, however important the value of thestolen livestock may be for purposes of sentence, it is not part of theessential elements of the crime. The theft of livestock is not asubstantive crime existing in common or statutory law independentlyof the common law crime of theft. It is simply a manifestation thereof.In R v Makamba, 1943 OPD 53, Van den Heever J had the opportunityto deal with the provisions of the Union Stock Theft Act, No. 26 of1923. He said (at page 54):“Act 26 of 1923 created a number of offences, but stock theft is notone of them. The Legislature assumed that the incidents of the crimeof theft were well known and required no further definition where thething stolen happened to be stock or produce of stock. All it did wasto provide new procedures, additional penalties and extendedjurisdiction in every case of theft in which a certain factual elementemerges, i.e. where the thing stolen is stock or produce of stock.The form of charge commonly used (U.D.J.12) seems to me correct inconception: the charge is one of theft only and in fairness to theaccused, and as an act of supererogation, he is warned of theprovisions of Act 26 of 1923. Sec. 11 of the Act leaves no room fordoubt as to the intention of the Legislature; it provides that ‘theprovisions of this Act shall apply in every case where an accused

6person is indicted, summoned or charged in respect of the theft ofstock or produce, notwithstanding the fact that this Act be notreferred to in such indictment, summons or charge’.”I pause here to note that s. 12 of the Act reads exactly the same as s.11 of the now repealed Act 26 of 1923 (RSA). This interpretation alsofound favour in the Appellate Division of the Supreme Court of SouthAfrica in the matter of Minister van Justisie; in re R v Menyuka and R vNqwelo, 1960(3) SA 370(A) where Beyers, JA said at 374A-B:“Hoewel die veediefstal wet sekere handelinge spesiaal strafbaar stelwat nie gemeenregtelik strafbaar was nie, poog die wet geensins omdiefstal van vee tot misdaad te verklaar nie. Veediefstal kan dus asniks anders beskou word as die gewone gemeenregtelike diefstal nie,met die onderskeidende factor … dat vee die gesteelde voorwerpuitmaak.”(Trans: Although the Stock Theft Act makes certain conduct, which hasnot been punishable under common law, specially punishable, the Actdoes not attempt at all to declare the theft of stock a crime. The theft ofstock can therefore not be regarded as anything but common law theft,with the distinguishing feature … that stock constitutes the stolenobject.)The essential elements of the theft of stock is therefore no differentthan that of common law theft i.e. “(a) unlawful; (b) contrectatio; (c)intent to steal; (d) property capable of being stolen” (See: Milton,South African Criminal Law and Procedure, Vol. 2 (3 rd ed.), p. 585) –with the distinguishing feature that the “property” is constituted of“stock” or “produce” as defined in s. 1 of the Stock Theft Act, 1990.

7Although Snyman, Criminal Law, (4 th ed.) at p. 469, criticises thedefinition of “theft” by Milton and proffers a more extensive one,neither he nor any of the other authorities which I have consulted,includes the value of the goods stolen as one of the essential elementsof the crime.By mentioning the estimated value of the stock in the indictment,summons or charge, the prosecution does not purport to elevate it tothe status of an element of the crime. The State does not therebyassume the duty to prove it beyond reasonable doubt in order tosecure a conviction. It is simply recorded to alert the court to thedegree of seriousness with which the commission of the theft falls tobe considered and that the case does not fall, for instance, within thepurview of the de minimus-rule.The accused admitted during the s. 112(1)(b)-inquiry in the districtmagistrate's courts to all the essential elements of the crime of theft ofstock. Having done so, the regional magistrate should have made aformal finding of guilty unless, of course, any of the otherconsiderations referred to in s. 114(3)(a)(ii) of the Code were present.I must also point out that, in terms of s. 114(4), the provisions of s.112(3) of the Code also apply to the proceedings after the regionalmagistrate has noted a formal finding of guilty. That subsectionprovides as follows:

8“Nothing in this section shall prevent the prosecutor from presentingevidence on any aspect of the charge, or the Court from hearingevidence, including evidence or a statement by or on behalf of theaccused, with regard to sentence, or from questioning the accused onany aspect of the case for the purposes of determining an appropriatesentence.”Given the regional magistrate’s view that the value of the livestockstolen had not been unequivocally admitted by the accused, he was atliberty to record that view and left it to the prosecutor to presentevidence on the value of the cattle. If it is the prosecution’s case thatthe value of the cattle was N$500-00 or more and that the provisionsof s. 14(1)(a)(ii) of the Act apply (requiring, in the absence ofsubstantial and compelling circumstances, the imposition of aminimum sentence of no less than 20 years imprisonment without theoption of a fine in the case of a first conviction) it has to prove suchvalue. In the absence of such proof, the magistrate will be constrainedto apply the provisions of s. 14(1)(a)(i) and to sentence the accused, ifhe is a first offender, to imprisonment for a period of not less than 2years without the option of a fine. The accused, I should add, is notlegally represented and it is therefore the duty of the magistrate toexplain to him the provisions and implications of s. 14 of the Act. Hemust be afforded an opportunity to take issue with the value of thestolen cattle contended for by the prosecution and to adduce proof ofthe existence of substantial and compelling circumstances.

9I should also draw the regional magistrate’s attention to the provisionsof s. 114(3)(b) of the Code. If he was not satisfied that the plea ofguilty or a material admission made by the accused was correctlyrecorded or, if for any other reason he was not satisfied that theaccused was guilty of the offence, he was entitled to enter a plea of notguilty and to proceed with the trial on a summary basis. It wastherefore not necessary for him to forward the record of proceedings tothis Court on special review in order to set aside the conviction in thedistrict magistrate's court. As it is, s. 304 of the Code only allows thisCourt to exercise its powers on special review after an accused hasbeen sentenced.It is for these reasons that this Court declines to exercise its powers ofspecial review. In the result this case is remitted to the regionalmagistrate to dispose of it in accordance with the provisions of s. 114of the Criminal Procedure Act, 1977.________________MARITZ, J.I concur.________________DAMASEB, JP.