CRIMINAL LAW – APPEAL AGAINST CONVICTION OF STOCKTHET

CRIMINAL LAW – APPEAL AGAINST CONVICTION OF STOCKTHET

On 4 November 2020, the appellant was convicted for stock theft read with the provisions of the Stock Theft Act, 12 of 1990 as amended, and sentenced to 3 years’ imprisonment without the option of a fine.  He appealed against the conviction on the basis that the State has not proven the element of appropriation and that the court erred in rejecting his version as to the acquisition of a sheep which he slaughtered.

In considering the appeal, CLAASEN J (SHIVUTE J CONCURRING) stated that an appeal court is not inclined to disturb the factual findings of a court a quo unless the appeal court is convinced that the findings are misdirected or erroneous; when it comes to circumstantial evidence, the appeal court is at greater liberty to disturb findings of a court a quo when dealing with inferences and probabilities; in this matter, the state’s case was solely based on circumstantial evidence as there was no single eye witness that observed the appellant steeling a sheep. The court held that:

1. In respect of the element of appropriation, the judgment by court a quo did not account for the explanation given by a state witness that a certain sheep arrived on their farm amongst the goats of another man. This fact did not link the act of removal of the missing sheep from the owner’s farm to the appellant.
2. Appellant’s explanation was that he was given a sheep by a co-accused, which version was supported by the evidence of three state witnesses. In the circumstances it pointed to the explanation as one that was reasonably possibly true and it was a misdirection not to have given the appellant the benefit of the doubt.
3. The evidence showed that there was no paper trail that accompanied the acquisition of the sheep.

In the result, the appeal succeeded in part, in that the conviction and sentence of the court a quo was set aside and the accused was convicted of the competent verdict of contravening section 3 of the Stock Theft Act as there was a duty on the appellant to ensure that he was not unlawfully receiving stock. He was accordingly sentenced to pay a fine of N$3500.00 or 21 months’ imprisonment, backdated to 4 November 2020.

De Koker v S NAHCMD 2 September 2022