8 February 2013

Namibia: Prison Still Awaits Stock Thieves

A STINT behind prison bars remains the inevitable fate of livestock thieves in Namibia, the High Court pointed out this week.

The fact that the heaviest classes of sentences prescribed by the Stock Theft Act have been declared unconstitutional does not mean that courts can now impose any sentence that they consider suitable in stock theft cases, Judge Kato van Niekerk said in a criminal review judgement which was handed down in the High Court in Windhoek this week.

As the Stock Theft Act stands now, the only sentence that may be imposed for stock theft, irrespective of the value of the livestock involved in the matter, is imprisonment without the option of a fine, Judge Van Niekerk said.

She made the remarks in a review judgement on a stock theft case which was heard in the Okakarara Magistrate's Court in September last year.

In that case, a 50-year-old unemployed father of nine children, Benjamin Tjiromongua, was accused of having stolen a sheep, valued at N$750. He pleaded guilty to the charge.

Having told the magistrate that he was in ill health, that six of his children were minors who still stay with him, that he could not pay a fine, and that he had stolen out of hunger, the magistrate sentenced him to two years' imprisonment.

That was after the magistrate had explained to Tjiromongua the prescribed sentences which have been declared unconstitutional in March 2010. When he sentenced Tjiromongua, the magistrate also told him that he was not satisfied that hunger amounts to a substantial and compelling circumstance which would allow the court to deviate from the minimum sentence prescribed by the Stock Theft Act.

It would appear that the High Court judgement in which the heaviest sentences which were prescribed in the Stock Theft Act were declared unconstitutional did not come to the knowledge of the magistrate, Judge Van Niekerk commented.

The parts of the Stock Theft Act that were declared unconstitutional are the section which required that stock thieves convicted of stealing livestock valued at more than N$500 had to be sentenced to not less than 20 years' imprisonment without the option of a fine, and the section which stated that people convicted of stock theft for a second or subsequent time had to be sentenced to not less than 30 years' imprisonment, also without the option of a fine.

The High Court did not strike down any provision of the Act relating to an offence where the value of the livestock is less than N$500, Judge Van Niekerk pointed out.

"The applicable sentence in such a case is still imprisonment for a period of not less than two years without the option of a fine," she stated.

"Furthermore, the only sentence that may be imposed for stock theft, irrespective of whether the value is more or less than N$500, is still only imprisonment without the option of a fine. It is therefore not correct to state that the courts may impose 'any' appropriate sentence for stock theft," she said.

Where the value of livestock that had been stolen is less than N$500, a court is still required to consider if there are any substantial and compelling circumstances which justify a lighter sentence than two years' imprisonment without the option of a fine, she added.

In Tjiromongua's case, his personal circumstances "are dire indeed", the judge commented.

She continued that although stock theft is a serious crime and prevalent throughout Namibia, the fact that Tjiromongua was a first-time offender at the age of 50 was an indication that he was not in need of a two-year prison term to deter him from committing crimes.

She replaced his sentence with one of 20 months' imprisonment, of which ten months were suspended for a period of four years on condition that he is not again convicted of stock theft committed in that period.

Judge Naomi Shivute agreed with the judgement.

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