THE STATE v ERADIUS KAULEEFELWA
CASE NO. CR 61/2005
2005/06/16
Damaseb, J.P. et Maritz, J.
CRIMINAL PROCEDURE
STOCK THEFT ACT
Criminal procedure – s 114 – committal of
accused by district magistrate’s court to
regional court for sentence – section confers
limited powers of review to regional
magistrate – powers of regional magistrate
under section discussed
Stock theft – Stock Theft Act not creating
substantive crime of stock theft – theft of
stock still common law crime of theft with
distinguishing feature that stock or produce
constitutes subject matter of theft – value
thereof not element of crime – failure of
accused to unequivocally admit value during
s 112(1)(b) enquiry not justifying conviction to
be set aside under s 114(3)(a) of CPA
Criminal procedure – minimum sentences
prescribed by s 14 of Stock Theft Act –
unrepresented accused to be informed and
implications thereof to be explained –
opportunity to be afforded to accused to
adduce evidence of substantial and
compelling circumstances justifying lesser
sentence
2
CASE NO. CR 61 /2005
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
versus
ERADIUS KAULEEFELWA
(SPECIAL REVIEW: HIGH COURT CASE NO. 811/2005)
CORAM:
DAMASEB, J.P. et MARITZ, J.
Delivered on:
2005-06-16
_____________________________________________________________________
SPECIAL REVIEW JUDGMENT
MARITZ, J.:
The accused was arraigned before the magistrate,
Eenhana, on a charge of theft taking into consideration the provisions
of sections 11(1)(a), 1, 14 and 17 of the Stock Theft Act, 1990 as
amended (the “Act”). He pleaded guilty to the charge and, after the
magistrate had satisfied herself during an inquiry in terms of s.
3
112(1)(b) of the Criminal Procedure Act, 1977 (the “Code”), that the
accused had intended to plead guilty, she convicted him as charged.
She thereupon stopped the proceedings in the district magistrate’s
court and committed the accused in terms of s. 114 of the Code for
sentence in the regional magistrate’s court for that area.
Although the record of proceedings in the district magistrate's court
was proved and received by the regional court as part of the record of
that court, the regional magistrate declined to make a formal finding of
guilty and to sentence the accused. Instead, he forwarded the record
to this Court on “special review”. The reasons for that decision appear
from both the record of proceedings forwarded on special review and
the accompanying letter. It will suffice if I quote the letter verbatim:
“1.
Accused was convicted of stock theft after he pleaded guilty to
the charge. The case was transferred to the regional court for
sentence to be imposed in terms of section 3 of the Stock Theft
Amendment Act, 2004 (No. 19 of 2004).
2.
After I read through the record of the district court, I was not
fully satisfied that the value of the cattle as alleged in the
charge has been established in view of the fact that no evidence
was led in that regard. Though accused said that he did not
dispute the value, that mere saying, in my view, is not an
unequivocal admission of the value of the cattle.
3.
The value of the stock is very essential for the purpose of
sentence.
It is therefore my view that if the State alleges a
certain value of the stock, evidence must be led to prove the
value.
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4.
It is for the above reason that I have decided to send this
matter for special review. ....”
Prudent as it might have been, the course of conduct followed by the
regional
magistrate
appears
to
be
both
inappropriate
and
impermissible. Section 114(3) of the Code indirectly confers a limited
form of review upon regional courts in cases where accused persons
are committed to that court for sentence. (See:
Du Toit et al.,
Commentary on the Criminal Procedure Act, p. 17-17) It provides as
follows:
“(a)
Unless the regional court concerned –
(i)
is satisfied that a plea of guilty or an admission by the
accused which is material to his guilt was incorrectly
recorded; or
(ii)
is not satisfied that the accused is guilty of the offence of
which he has been convicted and in respect of which he
has been committed for sentence,
the court shall make a formal finding of guilty and sentence the
accused.
(b)
If the Court is satisfied that a plea of guilty or an admission by
the accused which is material to his guilt was incorrectly
recorded, or if the Court is not satisfied that the accused is
guilty of the offence of which he has been convicted and in
respect of which he has been committed for sentence or that he
has no valid defence to the charge, the Court shall enter a plea
of not guilty and proceed with the trial as a summary trial in
that court: provided that any admission by the Accused the
recording of which is not disputed by the accused, shall stand
as proof of the fact thus admitted.”
5
The Magistrate is correct in his assessment that the accused’s
response to the district magistrate’s question regarding the value of
the stolen cattle does not constitute an unequivocal admission. His
answer falls significantly short of an admission that the assessed
value of N$7 000 was correct. But, however important the value of the
stolen livestock may be for purposes of sentence, it is not part of the
essential elements of the crime.
The theft of livestock is not a
substantive crime existing in common or statutory law independently
of 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 opportunity
to deal with the provisions of the Union Stock Theft Act, No. 26 of
1923. He said (at page 54):
“Act 26 of 1923 created a number of offences, but stock theft is not
one of them. The Legislature assumed that the incidents of the crime
of theft were well known and required no further definition where the
thing stolen happened to be stock or produce of stock. All it did was
to provide new procedures, additional penalties and extended
jurisdiction in every case of theft in which a certain factual element
emerges, 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 in
conception: the charge is one of theft only and in fairness to the
accused, and as an act of supererogation, he is warned of the
provisions of Act 26 of 1923. Sec. 11 of the Act leaves no room for
doubt as to the intention of the Legislature; it provides that ‘the
provisions of this Act shall apply in every case where an accused
6
person is indicted, summoned or charged in respect of the theft of
stock or produce, notwithstanding the fact that this Act be not
referred 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 also
found favour in the Appellate Division of the Supreme Court of South
Africa in the matter of Minister van Justisie; in re R v Menyuka and R v
Nqwelo, 1960(3) SA 370(A) where Beyers, JA said at 374A-B:
“Hoewel die veediefstal wet sekere handelinge spesiaal strafbaar stel
wat nie gemeenregtelik strafbaar was nie, poog die wet geensins om
diefstal van vee tot misdaad te verklaar nie. Veediefstal kan dus as
niks anders beskou word as die gewone gemeenregtelike diefstal nie,
met die onderskeidende factor … dat vee die gesteelde voorwerp
uitmaak.”
(Trans: Although the Stock Theft Act makes certain conduct, which has
not been punishable under common law, specially punishable, the Act
does not attempt at all to declare the theft of stock a crime. The theft of
stock can therefore not be regarded as anything but common law theft,
with the distinguishing feature … that stock constitutes the stolen
object.)
The essential elements of the theft of stock is therefore no different
than 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 (3rd 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.
7
Although Snyman, Criminal Law, (4th ed.) at p. 469, criticises the
definition 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 elements
of the crime.
By mentioning the estimated value of the stock in the indictment,
summons or charge, the prosecution does not purport to elevate it to
the status of an element of the crime. The State does not thereby
assume the duty to prove it beyond reasonable doubt in order to
secure a conviction.
It is simply recorded to alert the court to the
degree of seriousness with which the commission of the theft falls to
be considered and that the case does not fall, for instance, within the
purview of the de minimus-rule.
The accused admitted during the s. 112(1)(b)-inquiry in the district
magistrate's courts to all the essential elements of the crime of theft of
stock. Having done so, the regional magistrate should have made a
formal finding of guilty unless, of course, any of the other
considerations 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 regional
magistrate has noted a formal finding of guilty.
provides as follows:
That subsection
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“Nothing in this section shall prevent the prosecutor from presenting
evidence on any aspect of the charge, or the Court from hearing
evidence, including evidence or a statement by or on behalf of the
accused, with regard to sentence, or from questioning the accused on
any aspect of the case for the purposes of determining an appropriate
sentence.”
Given the regional magistrate’s view that the value of the livestock
stolen had not been unequivocally admitted by the accused, he was at
liberty to record that view and left it to the prosecutor to present
evidence on the value of the cattle. If it is the prosecution’s case that
the value of the cattle was N$500-00 or more and that the provisions
of s. 14(1)(a)(ii) of the Act apply (requiring, in the absence of
substantial and compelling circumstances, the imposition of a
minimum sentence of no less than 20 years imprisonment without the
option of a fine in the case of a first conviction) it has to prove such
value. In the absence of such proof, the magistrate will be constrained
to apply the provisions of s. 14(1)(a)(i) and to sentence the accused, if
he is a first offender, to imprisonment for a period of not less than 2
years without the option of a fine. The accused, I should add, is not
legally represented and it is therefore the duty of the magistrate to
explain to him the provisions and implications of s. 14 of the Act. He
must be afforded an opportunity to take issue with the value of the
stolen cattle contended for by the prosecution and to adduce proof of
the existence of substantial and compelling circumstances.
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I should also draw the regional magistrate’s attention to the provisions
of s. 114(3)(b) of the Code.
If he was not satisfied that the plea of
guilty or a material admission made by the accused was correctly
recorded or, if for any other reason he was not satisfied that the
accused was guilty of the offence, he was entitled to enter a plea of not
guilty and to proceed with the trial on a summary basis.
It was
therefore not necessary for him to forward the record of proceedings to
this Court on special review in order to set aside the conviction in the
district magistrate's court. As it is, s. 304 of the Code only allows this
Court to exercise its powers on special review after an accused has
been sentenced.
It is for these reasons that this Court declines to exercise its powers of
special review.
In the result this case is remitted to the regional
magistrate to dispose of it in accordance with the provisions of s. 114
of the Criminal Procedure Act, 1977.
________________
MARITZ, J.
I concur.
________________
DAMASEB, JP.