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S v Paulus (CR 25/2011)  NAHC 279 (22 September 2011)
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CASE NO.: CR 25/2011
IN THE HIGH COURT OF NAMIBIA
In the matter between:
(HIGH COURT REVIEW CASE NO.: 514/2009 OSHAKATI)
(MAGISTRATE’S SERIAL NO.: 249/2009)
CORAM: PARKER, J et SHIVUTE, J
SHIVUTE, J:  The accused was convicted of theft and sentenced to N$2000.00 (two thousand dollars) or in default of payment to 12 (twelve) months’ imprisonment.
 I raised a query with the magistrate as to how did the court satisfy itself that the accused stole the goods as stated in the annexure? It was alleged that the goods stolen belong to Oluno Mini Market, Ondangwa. Why was someone from the Mini Market not called to testify? How did the court satisfy itself about the value of the goods stolen? The magistrate had since replied and stated that with hindsight I concede I erred in convicting the accused person on the charge as read. It is irregular that the owner of Oluno Mini Market or a responsible person was not called. The obvious result is that it was not proved that the property was indeed stolen from Oluno Mini Market as well as what the true value is. I overlooked this essential aspect I sincerely regret this oversight. I am of the view that the conviction is not proper and must be set aside and the case be ordered to commence de novo.
 The State alleged that between August and September 2007 at Oluno Mini Market in the district of Ondangwa the accused did wrongfully and intentionally steal 12x crates of beer, 2x castle lager, 6x brown sugar packs, 1x empty crate of beer, 10x Tassenberg liquor, 6x Castello bottles of wine, 24x tins of fish, 45x Windhoek lager dumpies, the property of Oluno Mini Market, Ondangwa valued at N$5 526.45.
 The State called three witnesses and I will summarise their evidence. Ndapewa Petrus, an aunt to the accused, testified that the accused brought some crates of beer on diverse occasions at the house where she was staying. He first brought six crates of soft drinks, twelve crates of beer, and ten bags of sugar. The accused told the witness to look after the goods. He first said the goods belonged to him and later on he said he got the goods from a certain Mini Market and warned the witness not to disclose where he got the goods from and threatened to stab her should she disclose it. Of course this version was disputed by the accused.
 The witness sold some of the goods on behalf of the accused. However, when she learned that the goods were stolen she refused to sell the goods further and reported the matter to the police.
 The second witness called by the State was Nicanor Shipanga a serving prisoner at Oluno prison. He testified that he was convicted in connection with this case on 21 November 2007 and was sentenced to three years imprisonment. He further stated that he was staying in the same house with the accused before he was arrested. He continued to testify that this was his case hence he pleaded guilty to it. He is the one who gave the goods to the accused on two occasions. The goods included among others beer, wines and sugar. On both occasions he told the accused that he bought the goods as he was employed at Ondangwa Mini Market as a packer.
 Johannes Shigwedha a sergeant in the Namibian Police testified that he recovered some goods but these goods were linked to the accused’s friend who is serving in this case. He did not recover anything from the accused and that the accused was only implicated by Nicanor Shipanga the witness who testified previously. He interrogated the accused but he could not recall what the accused explained to him.
 On the other hand the accused testified that he knew nothing in connection with this matter, he did not steal, he was only arrested because he was staying with his friend the one who is serving a term of imprisonment in respect of this case.
 It is obvious from the above evidence that there is no sufficient evidence to warrant the accused to be convicted or let alone to be placed on his defence. It follows that the State did not prove its case beyond reasonable doubt against the accused and the magistrate erred by convicting the accused and the conviction cannot be allowed to stand. It follows that the sentence also falls away.
 As to the proposition of the learned magistrate that the matter should be referred back to the court to start de novo, this is not possible because the accused pleaded not guilty to the charge and the court proceeded with a trial. Therefore the court has become functus officio.
 In the result, the conviction and sentence are set aside.